SEM Select Medical Holdings Corporation

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 8-K

 

current report

 

Pursuant to Section 13 or 15(d) of the

 

Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): July 11, 2024

 

 

SELECT MEDICAL HOLDINGS CORPORATION

(Exact name of registrant as specified in its charter)

 

 

Delaware		001-34465		20-1764048
(State or other jurisdiction of Incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

 

4714 Gettysburg Road, P.O. Box 2034

Mechanicsburg, PA 17055

(Address of principal executive offices)  (Zip Code)

 

(717) 972-1100

(Registrant’s telephone number, including area code)

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, par value $0.001 per share	SEM	New York Stock Exchange (NYSE)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether either registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if either registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

6.875% Senior Notes Due 2032

 

On July 11, 2024 (the “Closing Date”), Select Medical Holdings Corporation (the “Company”) completed the previously announced private offering by its wholly-owned subsidiary, Concentra Escrow Issuer Corporation (the “Escrow Issuer”), of $650 million aggregate principal amount of 6.875% senior notes due 2032 (the “Notes”) and related guarantees. The Issuer will pay interest on the Notes semi-annually in cash in arrears on January 15 and July 15 of each year, beginning on January 15, 2025. Interest will accrue from July 11, 2024 and the Notes will mature on July 15, 2032.

 

The Notes and related guarantees were offered and sold in a private transaction exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), to persons reasonably believed to be qualified institutional buyers in accordance with Rule 144A under the Securities Act and outside the United States to certain non-U.S. persons in compliance with Regulation S under the Securities Act. The issuance and sale of the Notes and related guarantees have not been, and will not be, registered under the Securities Act or the securities laws of any state or other jurisdiction, and the Notes and related guarantees may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act and other applicable securities laws.

 

The Notes were offered in connection with the Company's previously announced plan to pursue a separation of Concentra Group Holdings Parent, Inc. (“Concentra”, and such separation the "Separation"). As a step in the process of effectuating the Separation and subject to satisfaction of certain conditions, including securing additional required financing, it is expected that the Issuer will merge with and into Concentra Health Services, Inc. (the “Issuer”), with the Issuer continuing as the surviving entity (the "Merger"), and the Issuer will assume all of the Escrow Issuer's obligations under the Notes and the related indenture (the “Assumption”).

 

$50 million of net proceeds from the offering will be used for general corporate purposes, with the remaining proceeds paid to Select Medical Corporation as a dividend.

 

Indenture

 

The terms of the Notes and related guarantees are governed by an indenture, dated as of the Closing Date (the “Indenture”), among the Escrow Issuer, the Issuer, and U.S. Bank Trust Company, National Association, as Trustee (the “Trustee”).

 

Concurrently with the closing of the offering of the Notes, the Escrow Issuer entered into an Escrow Agreement (the “Escrow Agreement”) with U.S. Bank Trust Company, National Association, as Trustee, and JPMorgan Chase Bank, N.A., as escrow agent (the “Escrow Agent”), pursuant to which the Escrow Issuer deposited the gross proceeds of the Notes offered thereby into a segregated escrow account with the Escrow Agent. The Escrow Issuer granted to the Trustee, for its benefit and the benefit of the holders of the Notes, an exclusive first-priority security interest in the escrow account and all amounts on deposit therein to secure the obligations under the Notes pending disbursement.

 

In the event the Merger is not consummated on or prior to September 30, 2024 (the “Outside Date”), the Escrow Issuer will be required to redeem all of the Notes in accordance with the terms of the Indenture at a special mandatory redemption price, which is equal to 100% of the initial issue price of the Notes, plus accrued and unpaid interest.

 

Interest and Maturity. The Notes bear interest at a rate of 6.875% per annum and mature on July 15, 2032. Interest is payable on the Notes semi-annually in cash in arrears on January 15 and July 15 of each year, beginning on January 15, 2025.

 

Guarantees and Security. Prior to the completion of the Merger, accrued and unpaid interest on the Notes is fully and unconditionally guaranteed by the Issuer.

 

 

It is expected that, substantially concurrently with the completion of the Merger, Concentra and certain of Concentra’s subsidiaries will execute a supplemental indenture (the “Supplemental Indenture”) pursuant to which they will unconditionally guarantee the obligations of the Issuer under the Notes on a senior unsecured basis.

 

Ranking.

 

Upon the execution of the Supplemental Indenture and completion of the Assumption, the Notes will be the Issuer’s and the related guarantees will be the guarantors’ senior unsecured obligations and will:

 

·

be effectively subordinated to all of the Issuer’s and the guarantors’ existing and future secured indebtedness, including the Credit Facilities, to the extent of the value of the assets securing such indebtedness;

 

·

rank equal in right of payment with all of the Issuer’s and each guarantor’s existing and future senior indebtedness and other obligations that are not, by their terms, expressly subordinated in right of payment to the Notes and the related guarantees;

 

·

rank senior in right of payment to all of the Issuer’s and each guarantor’s existing and future subordinated indebtedness and other obligations that are, by their terms, expressly subordinated in right to payment to the Notes and the related guarantees; and

 

·

be structurally subordinated to any existing and future indebtedness of any of Concentra’s subsidiaries that are not guarantors of the Notes.

 

Covenants. The Indenture contains covenants limiting the ability of the Company and the Company’s restricted subsidiaries to, among other things, incur additional indebtedness, pay dividends or distributions or redeem or purchase stock, make certain investments, create liens, merge or consolidate with another company or transfer or cell assets, enter into agreements restricting the ability of the Company’s restricted subsidiaries to make distributions, loans or advances to the Company or to other restricted subsidiaries, and enter into certain transactions with affiliates..

 

Events of Default. The Indenture provides for events of default (subject in certain cases to customary grace and cure periods) which include, among others, nonpayment of principal or interest when due, breach of covenants or other agreements in the Indenture, defaults in payment of certain other indebtedness, changes in control, and certain events of bankruptcy or insolvency. Generally, if an event of default occurs, the Trustee or the holders of at least 25% in aggregate principal amount of the outstanding Notes may declare all the Notes to be due and payable immediately.

 

Optional Redemption and Offer to Repurchase. Following the Merger, before July 15, 2027, the Issuer may redeem all or any portion of the Notes at a redemption price equal to 100% of the principal amount thereof plus a “make-whole” premium, plus accrued and unpaid interest, if any, to, but not including, the redemption date.

 

Following the Assumption, on or after July 15, 2027, the Issuer may redeem all or any portion of the Notes at the redemption prices described in the indenture plus accrued and unpaid interest, if any, to, but not including, the redemption date.

 

In addition, following the Assumption, at any time prior to July 15, 2027, the Issuer may, on any one or more occasions, redeem up to 40% of the aggregate principal amount of Notes issued under the indenture with the proceeds of certain equity offerings at the redemption price described in indenture plus accrued and unpaid interest, if any, to, but not including, the redemption date

 

Offer to Repurchase. If the Company experiences a change of control, each holder of Notes will have the right to require the Issuer to repurchase all or any part of that holder’s Notes at a price equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the date of purchase.

 

No Registration Rights or Listing. The Notes and related guarantees do not have the benefit of any registration rights. The Notes will not be listed on any securities exchange.

 

 

The foregoing descriptions of the Indenture, the Notes and related guarantees, and Escrow Agreement do not purport to be complete and are qualified in their entirety by reference to the Indenture, form of note and Escrow Agreement, copies of which are filed as Exhibits 4.1, 4.2 and 10.1, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.

 

The information set forth in Item 1.01 above is incorporated by reference into this Item 2.03.

 

No Offer or Solicitation

 

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act or an applicable exemption therefrom.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit Number	Description
4.1	Indenture, dated July 11, 2024, by and among the Escrow Issuer, the Issuer, and the Trustee.
4.2	Form of Note (included as Exhibits A1 and A2 to the Indenture filed herewith as Exhibit 4.1).
10.1	Escrow Agreement, dated July 11, 2024, by and among the Escrow Issuer, the Trustee and the Escrow Agent.
104	The cover page of this Current Report on Form 8-K, formatted in Inline XBRL.

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrants have duly caused this report to be signed on their behalf by the undersigned, thereunto duly authorized.

 

	SELECT MEDICAL HOLDINGS CORPORATION
Date: July 17, 2024	By:	/s/ Michael E. Tarvin
		Michael E. Tarvin
		Executive Vice President, General Counsel and Secretary

 

 

 

Exhibit 4.1

 

 

CONCENTRA ESCROW ISSUER CORPORATION

(whose obligations are to be assumed by CONCENTRA HEALTH SERVICES, INC. subject to the terms and conditions herein)

 

6.875% SENIOR NOTES DUE 2032

 

INDENTURE

 

Dated as of July 11, 2024

 

U.S. Bank Trust Company, National Association

 

Trustee

 

 

 

	TABLE OF CONTENTS
		Page
	ARTICLE 1.
	DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01	Definitions	1
SECTION 1.02	Other Definitions	31
SECTION 1.03	Financial calculations for Limited Condition Transaction	32
SECTION 1.04	Trust Indenture Act	33
SECTION 1.05	Rules of Construction and Calculation	33
	ARTICLE 2.
	THE NOTES
SECTION 2.01	Form and Dating	33
SECTION 2.02	Execution and Authentication	34
SECTION 2.03	Registrar and Paying Agent	35
SECTION 2.04	Paying Agent To Hold Money in Trust	35
SECTION 2.05	Holder Lists	36
SECTION 2.06	Transfer and Exchange	36
SECTION 2.07	Replacement Notes	46
SECTION 2.08	Outstanding Notes	46
SECTION 2.09	Treasury Notes	46
SECTION 2.10	Temporary Notes	47
SECTION 2.11	Cancellation	47
SECTION 2.12	Defaulted Interest	47
SECTION 2.13	CUSIP Numbers	47
SECTION 2.14	Issuance of Additional Notes	47
	ARTICLE 3.
	REDEMPTION AND PREPAYMENT
SECTION 3.01	Notices to Trustee	48
SECTION 3.02	Selection of Notes To Be Redeemed or Purchased	48
SECTION 3.03	Notice of Redemption	49
SECTION 3.04	Effect of Notice of Redemption	50
SECTION 3.05	Deposit of Redemption or Purchase Price	50
SECTION 3.06	Notes Redeemed or Purchased in Part	50
SECTION 3.07	Optional Redemption	50
SECTION 3.08	Mandatory Redemption	51
SECTION 3.09	Offer To Purchase by Application of Excess Proceeds	51
SECTION 3.10	Escrow of Proceeds; Special Mandatory Redemption	52

 

 

		Page
	ARTICLE 4.
	COVENANTS
SECTION 4.01	Payment of Notes	53
SECTION 4.02	Maintenance of Office or Agency	53
SECTION 4.03	Reports	54
SECTION 4.04	Compliance Certificate	55
SECTION 4.05	[Reserved]	55
SECTION 4.06	Stay, Extension and Usury Laws	55
SECTION 4.07	Restricted Payments	56
SECTION 4.08	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	60
SECTION 4.09	Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock	62
SECTION 4.10	Asset Sales	66
SECTION 4.11	Transactions with Affiliates	68
SECTION 4.12	Liens	70
SECTION 4.13	[Reserved]	70
SECTION 4.14	Corporate Existence	70
SECTION 4.15	Offer To Repurchase Upon Change of Control	70
SECTION 4.16	Designation of Restricted and Unrestricted Subsidiaries	72
SECTION 4.17	[Reserved.]	72
SECTION 4.18	Additional Note Guarantees	72
SECTION 4.19	Activities Prior to Escrow Release	73
	ARTICLE 5.
	SUCCESSORS
SECTION 5.01	Merger, Consolidation, or Sale of Assets	73
SECTION 5.02	Successor Corporation Substituted	74
	ARTICLE 6.
	DEFAULTS AND REMEDIES
SECTION 6.01	Events of Default	75
SECTION 6.02	Acceleration	76
SECTION 6.03	Other Remedies	77
SECTION 6.04	Waiver of Past Defaults	77
SECTION 6.05	Control by Majority	77
SECTION 6.06	Limitation on Suits	77
SECTION 6.07	Rights of Holders To Receive Payment	78
SECTION 6.08	Collection Suit by Trustee	78
SECTION 6.09	Trustee May File Proofs of Claim	78
SECTION 6.10	Priorities	78
SECTION 6.11	Undertaking for Costs	79

 

 

		Page
	ARTICLE 7.
	TRUSTEE
SECTION 7.01	Duties of Trustee	79
SECTION 7.02	Rights of Trustee	80
SECTION 7.03	Individual Rights of Trustee	81
SECTION 7.04	Trustee’s Disclaimer	81
SECTION 7.05	Notice of Defaults	81
SECTION 7.06	Reserved	82
SECTION 7.07	Compensation and Indemnity	82
SECTION 7.08	Replacement of Trustee	83
SECTION 7.09	Successor Trustee by Merger, etc.	83
SECTION 7.10	Eligibility; Disqualification	83
	ARTICLE 8.
	LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01	Option To Effect Legal Defeasance or Covenant Defeasance	84
SECTION 8.02	Legal Defeasance and Discharge	84
SECTION 8.03	Covenant Defeasance	84
SECTION 8.04	Conditions to Legal or Covenant Defeasance	85
SECTION 8.05	Deposited Money and Government Securities To Be Held in Trust; Other Miscellaneous Provisions	86
SECTION 8.06	Repayment to Issuer	86
SECTION 8.07	Reinstatement	86
	ARTICLE 9.
	AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01	Without Consent of Holders	87
SECTION 9.02	With Consent of Holders	87
SECTION 9.03	[Reserved]	89
SECTION 9.04	Revocation and Effect of Consents	89
SECTION 9.05	Notation on or Exchange of Notes	89
SECTION 9.06	Trustee To Sign Amendments, etc.	89
	ARTICLE 10.
	NOTE GUARANTEES
SECTION 10.01	Guarantee	90
SECTION 10.02	Limitation on Guarantor Liability	91
SECTION 10.03	Execution and Delivery of Note Guarantee	91
SECTION 10.04	Guarantors May Consolidate, etc., on Certain Terms	91
SECTION 10.05	Releases	92

 

 

		Page
	ARTICLE 11.
	SATISFACTION AND DISCHARGE
SECTION 11.01	Satisfaction and Discharge	93
SECTION 11.02	Application of Trust Money	94
	ARTICLE 12.
	MISCELLANEOUS
SECTION 12.01	Notices	94
SECTION 12.02	Communication by Holders with Other Holders	95
SECTION 12.03	Certificate and Opinion as to Conditions Precedent	96
SECTION 12.04	Statements Required in Certificate or Opinion	96
SECTION 12.05	Rules by Trustee and Agents	96
SECTION 12.06	No Personal Liability of Directors, Officers, Employees and Stockholders	96
SECTION 12.07	Governing Law	96
SECTION 12.08	No Adverse Interpretation of Other Agreements	97
SECTION 12.09	Successors	97
SECTION 12.10	Severability	97
SECTION 12.11	Counterpart Originals	97
SECTION 12.12	Table of Contents, Headings, etc.	97
	ARTICLE 13.
	ESCROW GUARANTEE
SECTION 13.01	Guarantee of Escrow Guaranteed Obligations	97
SECTION 13.02	Continuing Obligation	98
SECTION 13.03	Subrogation	98
SECTION 13.04	Subordination	98
SECTION 13.05	Assignment	98
SECTION 13.06	Termination	98
	EXHIBITS
Exhibit A1	FORM OF NOTE
Exhibit A2	FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B	FORM OF CERTIFICATE OF TRANSFER
Exhibit C	FORM OF CERTIFICATE OF EXCHANGE
Exhibit D	FORM OF NOTATION OF NOTE GUARANTEE
Exhibit E1	FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED IN CONNECTION WITH THE ASSUMPTION
Exhibit E2	FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS

 

 

INDENTURE dated as of July 11, 2024 by and among CONCENTRA ESCROW ISSUER CORPORATION (the “Escrow Issuer”), a newly formed Delaware corporation, CONCENTRA HEALTH SERVICES, INC., a Nevada corporation (“CHSI”), initially, solely in its capacity as Escrow Guarantor (as defined herein), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”).

 

WHEREAS, on the date hereof, the Escrow Issuer entered into an escrow agreement (the “Escrow Agreement”) with the Trustee and the Escrow Agent (as defined herein), pursuant to which the gross proceeds from the Notes sold on the Issue Date (as defined herein) will be deposited with the Escrow Agent in one or more segregated escrow accounts (collectively, the “Escrow Account”);

 

WHEREAS, upon satisfaction of the Escrow Release Conditions (as defined in the Escrow Agreement), substantially concurrently with the Escrow Release (as defined herein), the Escrow Issuer will merge with and into CHSI, with CHSI continuing as the surviving corporation (the “Escrow Merger”); and

 

WHEREAS, substantially concurrently with the Escrow Merger, CHSI and each of the Guarantors required to guarantee the Notes at such time will execute a supplemental indenture substantially in the form attached hereto as Exhibit E1 resulting in (i) the assumption by CHSI, upon consummation of the Escrow Merger, of all of the obligations of the Escrow Issuer under the Notes and this Indenture and the notes becoming the obligations of CHSI, as Issuer, and (ii) each such Guarantor, jointly and severally, unconditionally guaranteeing, on a senior unsecured basis, all of the Issuer’s obligations under the Notes and this Indenture.

 

NOW, THEREFORE, the Escrow Issuer, CHSI and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined) of the 6.875% Senior Notes due 2032 (the “Notes”):

 

ARTICLE 1.

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

SECTION 1.01 Definitions.

 

“144A Global Note” means a Global Note substantially in the form of Exhibit A1 hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.

 

“Acquired Debt” means, with respect to any specified Person:

 

(1)            Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and

 

(2)            Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

 

“Additional Assets” means any property or assets (other than Indebtedness and Capital Stock) to be used by Concentra or a Restricted Subsidiary in a Permitted Business.

 

 

“Additional Notes” means any Notes (other than the Initial Notes), if any, issued under this Indenture in accordance with Sections 2.02, 2.14 and 4.09.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings. No Person in whom a Receivables Subsidiary makes an Investment in connection with a Qualified Receivables Transaction will be deemed to be an Affiliate of Concentra or any of its Subsidiaries solely by reason of such Investment.

 

“Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.

 

“Applicable Premium” means, with respect to any Note on any Make-Whole Redemption Date, the greater of (i) 1.0% of the then outstanding principal amount of such Note and (ii) the excess of (A) the present value at such Make-Whole Redemption Date of (1) the redemption price of such Note at July 15, 2027 (such redemption price being set forth in the table appearing above in Section 5 of such Note), exclusive of accrued interest, plus (2) all scheduled interest payments due on such Note from the Make-Whole Redemption Date through July 15, 2027, computed using a discount rate equal to the Treasury Rate at such Make-Whole Redemption Date, plus 50 basis points over (B) the then outstanding principal amount of such Note.

 

“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary that apply to such transfer or exchange.

 

“Asset Sale” means:

 

(1)            the sale, lease (other than operating leases), conveyance or other disposition of any assets or rights outside of the ordinary course of business; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of Concentra and its Restricted Subsidiaries taken as a whole shall be governed by Sections 4.15 and 5.01 of this Indenture and not by Section 4.10 of this Indenture; and

 

(2)            the issuance of Equity Interests in any of Concentra’s Restricted Subsidiaries or the sale of Equity Interests in any of its Restricted Subsidiaries whether effected pursuant to a Division or otherwise (other than directors’ qualifying Equity Interests or Equity Interests required by applicable law to be held by a Person other than Concentra or a Restricted Subsidiary).

 

Notwithstanding the preceding, none of the following items shall be deemed to be an Asset Sale:

 

(1)            any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $25.0 million;

 

(2)            a transfer of assets between or among Concentra and its Restricted Subsidiaries;

 

(3)            an issuance of Equity Interests by a Restricted Subsidiary of Concentra to Concentra or to a Restricted Subsidiary of Concentra;

 

 

(4)            the sale or lease of products, services or accounts receivable (including at a discount) in the ordinary course of business and any sale or other disposition of damaged, worn out, negligible, surplus or obsolete assets in the ordinary course of business;

 

(5)            the sale or other disposition of Cash Equivalents;

 

(6)            a Restricted Payment that does not violate Section 4.07 of this Indenture or is a Permitted Investment;

 

(7)            a sale and leaseback transaction with respect to any assets within 180 days of the acquisition of such assets;

 

(8)            any exchange of like-kind property of the type described in Section 1031 of the Internal Revenue Code of 1986, as amended, for use in a Permitted Business;

 

(9)            the sale or disposition of any assets or property received as a result of a foreclosure by Concentra or any of its Restricted Subsidiaries on any secured Investment or any other transfer of title with respect to any secured Investment in default;

 

(10)          the licensing of intellectual property in the ordinary course of business or in accordance with industry practice;

 

(11)          the sale, lease, conveyance, disposition or other transfer of (a) the Equity Interests of, or any Investment in, any Unrestricted Subsidiary or (b) Permitted Investments made pursuant to clause (15) of the definition thereof;

 

(12)          surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind;

 

(13)          leases or subleases to third persons in the ordinary course of business that do not interfere in any material respect with the business of Concentra or any of its Restricted Subsidiaries;

 

(14)          sales of accounts receivable and related assets of the type specified in the definition of Qualified Receivables Transaction to a Receivables Subsidiary for the Fair Market Value thereof, less amounts required to be established as reserves and customary discounts pursuant to contractual agreements with entities that are not Affiliates of Concentra entered into as part of a Qualified Receivables Transaction;

 

(15)          transfers of accounts receivable and related assets of the type specified in the definition of Qualified Receivables Transaction (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Transaction;

 

(16)          dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of Concentra or any Restricted Subsidiary;

 

(17)          the sale of Equity Interests in joint ventures to the extent required by or made pursuant to, customary buy/sell arrangements entered into in the ordinary course of business between the joint venture parties and sent forth in joint venture agreements, and

 

 

(18)          sales, transfers and dispositions of non-core assets acquired after the Escrow Release Date in Permitted Investments made pursuant to clause (3) of the definition thereof and similar Investments so long as the assets disposed of constitute less than 25% of the aggregate Fair Market Value of all assets acquired in such Investment.

 

“Assumption” means, collectively, the consummation of the Escrow Merger and the execution by CHSI and each of the Guarantors of a supplemental indenture substantially in the form attached hereto as Exhibit E1.

 

“Assumption Date” means the date of the consummation of the Assumption.

 

“Assumption Date Supplemental Indenture” means a supplemental indenture, to be dated as of the Escrow Release Date, by and among the Issuer, the Guarantors and the Trustee, substantially in the form attached hereto as Exhibit E1.

 

“Attributable Indebtedness” means, on any date, in respect of any Capital Lease Obligation of any Person, the capitalized amount thereof that would appear as a liability on a balance sheet of such Person prepared as of such date in accordance with GAAP.

 

“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

 

“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time.

 

“Board of Directors” means:

 

(1)            with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

 

(2)            with respect to a partnership, the Board of Directors of the general partner of the partnership;

 

(3)            with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

 

(4)            with respect to any other Person, the board or committee of such Person serving a similar function.

 

“Broker-Dealer” means any broker or dealer registered under the Exchange Act.

 

“Business Day” means each day that is not a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York or the place of payment. If a payment date is not a Business Day at the place of payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest shall accrue on such payment for the intervening period.

 

 

“Capital Lease Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

 

“Capital Stock” means:

 

(1)            in the case of a corporation, corporate stock;

 

(2)            in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

 

(3)            in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

 

(4)            any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

“Captive Insurance Subsidiary” means a Subsidiary established by Concentra or any of its Subsidiaries for the sole purpose of insuring the business, facilities and/or employees of Concentra and its Subsidiaries.

 

“Cash Equivalents” means:

 

(1)            United States dollars or, in the case of any Restricted Subsidiary which is not a Domestic Subsidiary, any other currencies held from time to time in the ordinary course of business;

 

(2)            securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of those securities) having maturities of not more than 12 months from the date of acquisition;

 

(3)            direct obligations issued by any state of the United States of America or any political subdivision of any such state, or any public instrumentality thereof, in each case having maturities of not more than 12 months from the date of acquisition;

 

(4)            certificates of deposit and eurodollar time deposits with maturities of 12 months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding 12 months and overnight bank deposits, in each case, with any lender party to the Credit Agreement or with any domestic commercial bank that has capital and surplus of not less than $500.0 million;

 

(5)            repurchase obligations with a term of not more than one year for underlying securities of the types described in clauses (2) and (4) above entered into with any financial institution meeting the qualifications specified in clause (4) above;

 

 

(6)            commercial paper having one of the two highest ratings obtainable from Moody’s Investors Service, Inc. or Standard & Poor’s Rating Services and, in each case, maturing within 12 months after the date of acquisition;

 

(7)            Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from Standard & Poor’s Rating Services or “A2” or higher from Moody’s Investors Service, Inc. with maturities of 12 months or less from the date of acquisition; and

 

(8)            money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (6) of this definition.

 

“Change of Control” means the occurrence of any of the following:

 

(1)            the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of Concentra and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d) of the Exchange Act);

 

(2)            the adoption of a plan relating to the liquidation or dissolution of the Issuer or Concentra;

 

(3)            the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any “person” (as defined above) other than one or more Permitted Holders becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of Concentra, measured by voting power rather than number of shares; provided, however, for purposes of this clause (3), each Person will be deemed to beneficially own any Voting Stock of another Person held by one or more of its Subsidiaries; or

 

(4)            the Issuer ceases to be a direct or indirect Subsidiary of Concentra.

 

For the avoidance of doubt, neither the Separation nor the Distribution shall constitute a Change of Control.

 

“Closing Date Distribution” means the repayment by Concentra of the promissory note issued to Select as a dividend with the proceeds of the initial borrowings under the Credit Agreement, the proceeds of the Initial Public Offering and the proceeds of the offering of the Notes.

 

“Concentra” means Concentra Group Holdings Parent, Inc.

 

“Consolidated Adjusted EBITDA” means, with respect to any specified Person for any period (the “Measurement Period”), the Consolidated Net Income of such Person for such period plus, without duplication and to the extent deducted (and not added back or excluded) in determining such Consolidated Net Income, the amounts for such period of:

 

(1)            the Fixed Charges of such Person and its Restricted Subsidiaries for the Measurement Period; plus

 

(2)            the consolidated income tax expense of such Person and its Restricted Subsidiaries for the Measurement Period; plus

 

 

(3)            the consolidated depreciation expense of such Person and its Restricted Subsidiaries for the Measurement Period; plus

 

(4)            the consolidated amortization expense of such Person and its Restricted Subsidiaries for the Measurement Period; plus

 

(5)            fees, costs and expenses paid or payable in cash by Concentra or any of its Subsidiaries during the Measurement Period in connection with the Transactions; plus

 

(6)            other non-cash expenses, charges or losses for the Measurement Period (but excluding (A) any non-cash charge, expense or loss in respect of amortization of a prepaid cash item that was included in Consolidated Net Income in a prior period and (B) any non-cash charge, expense or loss that relates to the write-down or write-off of inventory or accounts receivable); provided that if any non-cash charges, expenses or losses referred to in this clause (6) represents an accrual or reserve for potential cash items in any future period, (x) the Issuer may elect not to add back such non-cash charge, expense or loss in the current period and (y) to the extent the Issuer elects to add back such non-cash charge, expense or loss, the cash payment in respect thereof in such future period shall be subtracted from Consolidated Adjusted EBITDA in such future period to such extent paid; plus

 

(7)            any non-recurring out-of-pocket expenses or charges for the Measurement Period (including, without limitation, any premiums, make-whole or penalty payments) relating to any offering of Equity Interests by Concentra or any other direct or indirect parent holding company of Concentra or merger, recapitalization or acquisition transactions made by Concentra or any of its Restricted Subsidiaries, or any Indebtedness incurred or repaid by Concentra or any of its Restricted Subsidiaries (in each case, whether or not successful); plus

 

(8)            [Reserved.]

 

(9)            Consolidated Net Income attributable to non-controlling interests of a Restricted Subsidiary (less the amount of any mandatory cash distribution with respect to any non-controlling interest other than in connection with a proportionate discretionary cash distribution with respect to the interest held by Concentra or any Restricted Subsidiary); plus

 

(10)          any gains or losses realized upon the disposition of assets outside the ordinary course of business (including any gain or loss realized upon the disposition of any Equity Interests of any Person) and any gains or losses on disposed, abandoned, and discontinued operations (including in connection with any disposal thereof) and any accretion or accrual of discounted liabilities; plus

 

(11)          other cash expenses incurred during such period in connection with Permitted Investments made pursuant to clause (3) of the definition thereof to the extent that such expenses are reimbursed in cash during such period pursuant to indemnification provisions of any agreement relating to such transaction; plus

 

(12)          any non-recurring fees, cash charges and other cash expenses incurred in connection with the issuance of Equity Interests or Indebtedness or the extinguishment of Indebtedness; plus

 

 

(13)          any non-cash costs or expenses, incurred pursuant to any management equity plan, stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement; plus

 

(14)          changes in earn-out and contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise) and adjustments thereof and purchase price adjustments, in each case in connection with any acquisitions; plus

 

(15)          costs, charges, accruals, reserves or expenses attributable to the undertaking and/or implementation of cost savings initiatives and operating expense reductions, restructuring and similar charges, severance, relocation costs, integration and facilities opening costs and other business optimization expenses, signing costs, retention or completion bonuses, transition costs, costs related to closure/consolidation of facilities and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities) in an aggregate amount not to exceed 30% (when taken together with amounts added under clause (16) below) of Consolidated Adjusted EBITDA in such Measurement Period (calculated after giving effect to applicable addbacks and adjustments); plus

 

(16)          pro forma “run rate” cost savings, operating expense reductions and synergies (including post-acquisition price or administration fee increases) related to acquisitions, dispositions and other specified transactions (including, for the avoidance of doubt, acquisitions occurring prior to the Issue Date), restructurings, cost savings initiatives and other initiatives that are reasonably identifiable, factually supportable and projected by the Issuer in good faith to result from actions that have been taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Issuer) within 18 months after such acquisition, disposition or other specified transaction, restructuring, cost savings initiative or other initiative in an aggregate amount not to exceed 30% (when taken together with amounts under clause (15) above) of Consolidated Adjusted EBITDA in such Measurement Period (calculated after giving effect to applicable addbacks and adjustments); plus

 

(17)          any reduction in Consolidated Net Income for such period attributable to facilities open and operating for a period of 18 months or less as of the end of the relevant Measurement Period; plus

 

(18)           any gain or loss (after any offset) resulting from currency transaction or translation gains or losses and any gains or losses related to currency remeasurements of Indebtedness (including intercompany indebtedness and foreign currency hedges for currency exchange risk); plus

 

(19)           charges, losses or expenses, to the extent indemnified or insured or reimbursed by a third party to the extent such indemnification, insurance or reimbursement is received in cash or reasonably be expected to be paid within 365 days after the incurrence of such charge, loss or expense to the extent not accrued; minus

 

(20)          [Reserved.]; minus

 

(21)           without duplication, other non-cash items (other than the accrual of revenue in accordance with GAAP consistently applied in the ordinary course of business) increasing Consolidated Net Income for the Measurement Period (excluding any such non-cash item to the extent it represents the reversal of an accrual or reserve for potential cash item in any prior period); and

 

 

(22)           without duplication, plus unrealized losses and minus unrealized gains in each case in respect of agreements governing Hedging Obligations, as determined in accordance with GAAP.

 

“Consolidated Practice” means any therapist- or physician-owned professional organization, association or corporation that employs or contracts with physicians and has entered into a management services agreement with Concentra or any of its Subsidiaries, the accounts of which are consolidated with Concentra and its Subsidiaries in accordance with GAAP.

 

“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the Net Income attributable to such specified Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

 

(1)            the Net Income (but not loss, to the extent that such loss has been funded with cash by Concentra or a Restricted Subsidiary) of any other Person that is not a Restricted Subsidiary of such specified Person or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in Cash Equivalents (or to the extent subsequently converted into Cash Equivalents) to the specified Person or a Restricted Subsidiary of the specified Person in respect of such period;

 

(2)            solely for purposes of clause (3)(A) of Section 4.07(a), the Net Income of any Restricted Subsidiary of such specified Person will be excluded to the extent that the declaration or payment of dividends or other distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders; provided that Consolidated Net Income of such Person shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash to (or to the extent converted into cash by) such Person or a Restricted Subsidiary thereof (subject to provisions of this clause (2)) during such period, to the extent not previously included therein;

 

(3)            the cumulative effect of a change in accounting principles will be excluded;

 

(4)            any gains or losses (less all fees, expenses and charges relating thereto) attributable to any sale of assets outside the ordinary course of business, the disposition of any Equity Interests of any Person or any of its Restricted Subsidiaries, or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries, in each case, other than in the ordinary course of business, will be excluded;

 

(5)            any extraordinary, unusual or non-recurring gain or loss, together with any related provision for taxes on such extraordinary, unusual or non-recurring gain or loss will be excluded;

 

(6)            income or losses attributable to discontinued operations (including, without limitation, operations disposed during such period whether or not such operations were classified as discontinued) will be excluded;

 

 

(7)            any non-cash charges (i) attributable to applying the purchase method of accounting in accordance with GAAP, (ii) resulting from the application of Accounting Standards Codification (“ASC”) Topic 350 or ASC Topic 360, and (iii) relating to the amortization of intangibles resulting from the application of ASC Topic 805, will be excluded;

 

(8)            all non-cash charges relating to employee benefit or other management or stock compensation plans of Concentra or a Restricted Subsidiary (excluding any such non-cash charge to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense incurred in a prior period) will be excluded to the extent that such non-cash charges are deducted in computing such Consolidated Net Income; provided that if Concentra or any Restricted Subsidiary of Concentra makes a cash payment in respect of such non-cash charge in any period, such cash payment will (without duplication) be deducted from the Consolidated Net Income of Concentra for such period;

 

(9)            all unrealized gains and losses relating to hedging transactions and mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of ASC Topic 830 shall be excluded; and

 

(10)          any unrealized foreign currency translation gains or losses, including in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person shall be excluded.

 

“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 12.01 or such other address as to which the Trustee may give notice to the Issuer.

 

“Credit Agreement” means that certain Credit Agreement expected to be entered into on the Escrow Release Date, by and among CHSI, as borrower, JPMorgan Chase Bank, N.A., as administrative agent, and the other parties thereto, including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced by any other Indebtedness (including by means of sales of debt securities and including any amendment, restatement, modification, renewal, refunding, replacement or refinancing that increases the amount borrowed thereunder or extends the maturity thereof) in whole or in part from time to time.

 

“Credit Facilities” means, one or more debt facilities (including, without limitation, the Credit Agreement) or commercial paper facilities, in each case, with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit or any other Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities and including any amendment, restatement, modification, renewal, refunding, replacement or refinancing that increases the amount borrowed thereunder or extends the maturity thereof) in whole or in part from time to time.

 

“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

 

“Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

 

 

“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06, substantially in the form of Exhibit A1 hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.

 

“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

 

“Designated Noncash Consideration” means any non-cash consideration received by Concentra or a Restricted Subsidiary in connection with an Asset Sale that is designated as Designated Noncash Consideration pursuant to an Officer’s Certificate.

 

“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 90 days after the date on which the Notes mature. Notwithstanding the preceding sentence, (x) any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require Concentra or the Subsidiary that issued such Capital Stock to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that Concentra may not repurchase such Capital Stock unless Concentra would be permitted to do so in compliance with Section 4.07, (y) any Capital Stock that would constitute Disqualified Stock solely as a result of any redemption feature that is conditioned upon, and subject to, compliance with Section 4.07 shall not constitute Disqualified Stock and (z) any Capital Stock issued to any plan for the benefit of employees will not constitute Disqualified Stock solely because it may be required to be repurchased by Concentra or the Subsidiary that issued such Capital Stock in order to satisfy applicable statutory or regulatory obligations. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that Concentra and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

 

“Distribution” means Select’s distribution of shares of Concentra common stock owned by Select and its Subsidiaries following the Initial Public Offering to Select’s stockholders, which is expected to occur at some time following the Initial Public Offering.

 

“Dividing Person” has the meaning assigned to it in the definition of “Division.”

 

“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.

 

“Domestic Subsidiary” means any Restricted Subsidiary of Concentra that was formed under the laws of the United States or any state of the United States or the District of Columbia or that guarantees any Indebtedness of the Issuer under the Credit Agreement.

 

“Employee Matters Agreement” has the meaning given in the Offering Memorandum.

 

 

“Escrow Agent” means JPMorgan Chase Bank, N.A., as escrow agent, securities intermediary and depositary bank, as applicable.

 

“Escrow Guaranteed Obligations” means the Escrow Guarantor’s obligations to pay up to the amount necessary to fund the interest due on the Notes from the Issue Date to, but excluding, the Special Mandatory Redemption Date upon any Special Mandatory Redemption.

 

“Escrow Guarantor” means, prior to the Assumption, CHSI, solely in its capacity of guaranteeing the Escrow Guaranteed Obligations pursuant to this Indenture.

 

“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

“Equity Offering” means a public or private offering of Qualified Capital Stock of Concentra or any other direct or indirect parent holding company of Concentra.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Excluded Contributions” means net cash proceeds, marketable securities or Qualified Proceeds received by Concentra from (i) contributions to its equity capital (other than Disqualified Stock) or (ii) the sale (other than to a Subsidiary of Concentra or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of Concentra) of Equity Interests (other than Disqualified Stock) of Concentra, in each case designated as Excluded Contributions pursuant to an Officer’s Certificate on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be, that are excluded from the calculation set forth in clause (3) of Section 4.07(a) hereof.

 

“Existing Indebtedness” means Indebtedness, other than the Notes and Indebtedness under the Credit Agreement, existing on the Escrow Release Date.

 

“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of Directors, chief executive officer or chief financial officer of Concentra (unless otherwise provided in this Indenture).

 

“Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the ratio of the Consolidated Adjusted EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock or Disqualified Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock or Disqualified Stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.

 

 

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

 

(1)            Investments, acquisitions, mergers, consolidations and dispositions that have been made by the specified Person or any of its Restricted Subsidiaries, or any Person or any of its Restricted Subsidiaries acquired by, merged or consolidated with the specified Person or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect, including giving effect to Pro Forma Cost Savings, as if they had occurred on the first day of the four-quarter reference period;

 

(2)            the Consolidated Adjusted EBITDA attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded;

 

(3)            the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;

 

(4)            any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;

 

(5)            any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and

 

(6)            if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness).

 

For purposes of this definition, whenever pro forma effect is given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of Concentra. For purposes of determining whether any Indebtedness constituting a Guarantee may be incurred, the interest on the Indebtedness to be guaranteed shall be included in calculating the Fixed Charge Coverage Ratio on a pro forma basis. Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of Concentra to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.

 

 

“Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:

 

(1)            the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, net of interest income, whether paid or accrued, including, without limitation, original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all cash payments made or received pursuant to Hedging Obligations in respect of interest rates, and excluding amortization of deferred financing costs; plus

 

(2)            any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, but only to the extent that such Guarantee or Lien is called upon; plus

 

(3)            the product of (A) all cash dividends paid on any series of preferred stock of such Person or any of its Restricted Subsidiaries (other than to Concentra or a Restricted Subsidiary of Concentra), in each case, determined on a consolidated basis in accordance with GAAP multiplied by (B) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of Concentra and its Restricted Subsidiaries expressed as a decimal; plus

 

(4)            the amount of dividends paid by Concentra and its Restricted Subsidiaries pursuant to Section 4.07(b)(12).

 

“Foreign Subsidiary” means any Restricted Subsidiary of Concentra that is not incorporated under the laws of the United States of America, any State thereof or the District of Columbia.

 

“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the Issue Date.

 

“Global Note Legend” means the legend set forth in Section 2.06(g)(2), which is required to be placed on all Global Notes issued under this Indenture.

 

“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depository or its nominee, substantially in the form of Exhibit A1 and A2 hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4) or 2.06(d)(2) hereof.

 

“Government Securities” means direct obligations of, or obligations guaranteed by, the United States of America (including any agency or instrumentality thereof) and the payment for which the United States pledges its full faith and credit.

 

“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).

 

 

“Guarantors” means Concentra and each Restricted Subsidiary of Concentra that executes a Note Guarantee in accordance with the provisions of this Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.

 

“Hedging Obligations” means, with respect to any specified Person, the obligations of such Person under:

 

(1)            interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

 

(2)            other agreements or arrangements designed to manage interest rates or interest rate risk; and

 

(3)            other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

 

“Holder” means a Person in whose name a Note is registered.

 

“Indebtedness” means, with respect to any specified Person, the principal and premium (if any) of any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:

 

(1)            in respect of borrowed money;

 

(2)            evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) (other than letters of credit issued in respect of trade payables);

 

(3)            in respect of banker’s acceptances;

 

(4)            representing Capital Lease Obligations;

 

(5)            representing the balance deferred and unpaid of the purchase price of any property or services due more than twelve months after such property is acquired or such services are completed (except any such balance that constitutes a trade payable or similar obligation to a trade creditor); or

 

(6)            representing the net obligations under any Hedging Obligations,

 

if and to the extent any of the preceding items (other than letters of credit, and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person.

 

“Indenture” means this Indenture, as amended or supplemented from time to time.

 

“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.

 

 

“Initial Notes” means the first $650.0 million aggregate principal amount of Notes issued under this Indenture.

 

“Initial Public Offering” means the offering and sale on a registered basis by Concentra of shares of its common stock and the concurrent listing of such shares on a national securities exchange.

 

“Initial Purchasers” means J.P. Morgan Securities LLC, Goldman Sachs & Co. LLC, BofA Securities, Inc., Deutsche Bank Securities Inc., Wells Fargo Securities, LLC, Mizuho Securities USA LLC, RBC Capital Markets, LLC, Truist Securities, Inc., Capital One Securities, Inc., Fifth Third Securities, Inc. and PNC Capital Markets LLC.

 

“Investments” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel, relocation and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If Concentra or any Restricted Subsidiary of Concentra sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of Concentra such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of Concentra, Concentra will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of Concentra’s Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in Section 4.07(c). The acquisition by Concentra or any Restricted Subsidiary of Concentra of a Person that holds an Investment in a third Person will be deemed to be an Investment by Concentra or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in Section 4.07(c). The outstanding amount of any Investment shall be the original cost thereof, reduced by all returns on such Investment (including dividends, interest, distributions, returns of principal and profits on sale).

 

“Issue Date” means July 11, 2024.

 

“Issuer” means (a) prior to the consummation of the Assumption, the Escrow Issuer and (b) from and after the consummation of the Assumption, CHSI, which will have assumed all of the obligations of the Escrow Issuer under the Notes upon the Escrow Merger and pursuant to the Assumption Date Supplemental Indenture.

 

“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.

 

“Limited Condition Transaction” means (i) any acquisition by one or more of Concentra or its Restricted Subsidiaries of any assets, business or Person whose consummation is not conditioned on the availability of, or on obtaining, third party financing, (ii) any permitted Investment whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (iii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.

 

 

“LTM Adjusted EBITDA” means Consolidated Adjusted EBITDA of Concentra for the most recent period of four consecutive fiscal quarters of Concentra ended prior to such date for which internal financial statements are available.

 

“Make-Whole Redemption Date” means the date on which any Note is redeemed pursuant to Section 5(c) of the Notes.

 

“Net Income” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends.

 

“Net Proceeds” means the aggregate cash proceeds received by Concentra or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, payments made in order to obtain a necessary consent or required by applicable law, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, including taxes resulting from the transfer of the proceeds of such Asset Sale to the Issuer, in each case, after taking into account:

 

(1)            any available tax credits or deductions and any tax sharing arrangements;

 

(2)            amounts required to be applied to the repayment of Indebtedness secured by a Lien on the asset or assets that were the subject of such Asset Sale;

 

(3)            any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP;

 

(4)            any reserve for adjustment in respect of any liabilities associated with the asset disposed of in such transaction and retained by Concentra or any Restricted Subsidiary after such sale or other disposition thereof;

 

(5)            any distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Sale; and

 

(6)            in the event that a Restricted Subsidiary consummates an Asset Sale and makes a pro rata payment of dividends to all of its stockholders from any cash proceeds of such Asset Sale, the amount of dividends paid to any stockholder other than Concentra or any other Restricted Subsidiary, provided that any net proceeds of an Asset Sale by a Non-Guarantor Subsidiary that are subject to restrictions on repatriation to Concentra will not be considered Net Proceeds for so long as such proceeds are subject to such restrictions.

 

“New York Office of the Trustee” means 100 Wall Street, 6^th Floor, New York, New York 10005.

 

“Non-Guarantor Subsidiaries” means (w) any Unrestricted Subsidiary, (x) any Receivables Subsidiary, (y) any Subsidiary of Concentra that does not guarantee the Issuer’s Obligations under the Credit Agreement and (z) in addition to the foregoing, any other non-Wholly Owned Subsidiary of Concentra, (1) the Equity Interests of which are owned by (i) Concentra and/or its Restricted Subsidiaries and/or (ii) any other Persons that were or are interested (other than solely in the capacity as an equity holder of such non-Wholly Owned Subsidiary) in any facility owned or operated by such non-Wholly Owned Subsidiary, such as physicians, physician groups or other medical professionals and/or other Persons (such as acute care hospitals, hospital systems or foundations) in the community in which any such facility is located and (2) at the time of designation, together with all other Non-Guarantor Subsidiaries designated pursuant to this clause (z), represent no more than 20% of LTM Adjusted EBITDA at such time. The Board of Directors of Concentra may designate any Restricted Subsidiary as a Non-Guarantor Subsidiary by filing with the Trustee a certified copy of a resolution of such Board of Directors giving effect to such designation and an Officer’s Certificate certifying as to the applicable clause of the definition of Non-Guarantor Subsidiaries that warrants such designation.

 

 

“Non-U.S. Person” means a Person who is not a U.S. Person.

 

“Note Guarantee” means the Guarantee by each Guarantor of the Issuer’s Obligations under this Indenture and the Notes, executed pursuant to the provisions of this Indenture.

 

“Notes” has the meaning assigned to it in the preamble to this Indenture.

 

“Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

 

“Offering Memorandum” means the Issuer’s offering memorandum, dated June 26, 2024, related to the issuance and sale of the Initial Notes.

 

“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.

 

“Officer’s Certificate” means a certificate (i) prior to the Assumption, signed on behalf of the Escrow Issuer by one Officer of the Escrow Issuer and (ii) from and after the Assumption, signed on behalf of Concentra by one Officer of Concentra, who must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of Concentra, that meets the requirements of Section 12.04 hereof.

 

“Opinion of Counsel” means an opinion from legal counsel that meets the requirements of Section 12.04. The counsel may be an employee of or counsel to Concentra or any Subsidiary of Concentra.

 

“Participant” means, with respect to the Depositary, a Person who has an account with the Depositary.

 

“Permitted Business” means (i) any business engaged in by Concentra or any of its Restricted Subsidiaries on the Issue Date, and (ii) any healthcare business or other activities that are reasonably similar, ancillary, complementary or related to, or a reasonable extension, development or expansion of, the businesses in which Concentra and its Restricted Subsidiaries are engaged on the Issue Date.

 

“Permitted Holders” means (i) prior to the Distribution, (A) Select and each of its Subsidiaries, (B) Welsh, Carson, Anderson & Stowe XII, L.P., Cressey & Company Fund IV, L.P. and each of their respective Affiliates that is neither an operating company nor a company controlled by an operating company, (C) (i) any officer, director, employee, member, partner or stockholder of the manager or general partner (or the general partner of the general partner) of any of the Persons referred to in clause (B), (ii) Rocco A. Ortenzio, Robert A. Ortenzio and each of the other directors and executive officers of Select or any of its direct or indirect Subsidiaries as of the Issue Date; (iii) the spouses, ancestors, siblings, descendants (including children or grandchildren by adoption) and the descendants of any of the siblings of the Persons referred to in clause (i) or (ii); (iv) in the event of the incompetence or death of any of the Persons described in any of clauses (i) through (iii), such Person’s estate, executor, administrator, committee or other personal representative, in each case who at any particular date shall be the Beneficial Owner or have the right to acquire, directly or indirectly, Capital Stock of the Issuer or Concentra (or any other direct or indirect parent holding company of Concentra); (v) any trust created for the benefit of the Persons described in any of clauses (i) through (iv) or any trust for the benefit of any such trust; or (vi) any Person controlled by any of the Persons described in any of the clauses (i) through (v) and (D) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the Persons described in clauses (B) and (C) above are members, and (ii) any Permitted Parent.

 

 

“Permitted Investments” means:

 

(1)            any Investment in Concentra or in a Restricted Subsidiary of Concentra;

 

(2)            any Investment in Cash Equivalents;

 

(3)            any Investment by Concentra or any Restricted Subsidiary of Concentra in a Person, if as a result of such Investment:

 

(a)            such Person becomes a Restricted Subsidiary of Concentra (including by means of a Division); or

 

(b)            such Person, in one transaction or a series of transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets or assets constituting a business unit, a division or line of business of such Person or a facility of such Person (including research and development and related assets in respect of any products)) to, or is liquidated into, Concentra or a Restricted Subsidiary of Concentra;

 

(4)            any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;

 

(5)            any Investment solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of Concentra (or any other direct or indirect parent holding company of Concentra);

 

(6)            any Investments received in compromise, settlement or resolution of (A) obligations of trade debtors or customers that were incurred in the ordinary course of business of Concentra or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade debtor or customer, (B) litigation, arbitration or other disputes with Persons who are not Affiliates or (C) as a result of a foreclosure by Concentra or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;

 

(7)            Investments represented by Hedging Obligations entered into to protect against fluctuations in interest rates, exchange rates and commodity prices;

 

(8)            any Investment in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;

 

 

(9)            Investments in receivables or other trade payables owing to Concentra or any Restricted Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as Concentra or any such Restricted Subsidiary deems reasonable under the circumstances;

 

(10)          Investments in (x) prepaid expenses and negotiable instruments held for collection and (y) lease, utility and workers compensation, unemployment insurance, other social security benefits or other insurance-related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto), performance, progress, and similar deposits entered into as a result of the operations of the business in the ordinary course of business;

 

(11)          obligations of one or more officers or other employees of Concentra or any of its Restricted Subsidiaries in connection with such officer’s or employee’s acquisition of shares of Capital Stock of Concentra (or any other direct or indirect parent holding company of Concentra) so long as no cash or other assets are paid by Concentra or any of its Restricted Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;

 

(12)          loans or advances to and guarantees provided for the benefit of employees and other individual service providers in each case made in the ordinary course of business (including travel, entertainment and relocation expenses) of Concentra or any of its Restricted Subsidiaries in an aggregate principal amount not to exceed $5.0 million at any one time outstanding;

 

(13)          Investments existing as on the Escrow Release Date or an Investment consisting of any extension, modification or renewal of any Investment existing as of the Escrow Release Date (excluding any such extension, modification or renewal involving additional advances, contributions or other investments of cash or property or other increases thereof unless it is a result of the accrual or accretion of interest or original issue discount or payment-in-kind pursuant to the terms, as of the Escrow Release Date, of the original Investment so extended, modified or renewed);

 

(14)          repurchases of the Notes;

 

(15)            other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (15) that are at the time outstanding not to exceed the greater of $100.0 million and 25% of LTM Adjusted EBITDA at such time outstanding at any time; provided, however, that if any Investment pursuant to this clause (15) is made in any Person that is not a Restricted Subsidiary of Concentra at the date of the making of such Investment and such Person becomes a Restricted Subsidiary of Concentra after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (15) for so long as such Person continues to be a Restricted Subsidiary (it being understood that if such Person thereafter ceases to be a Restricted Subsidiary of Concentra, such Investment will again be deemed to have been made pursuant to this clause (15));

 

(16)          the acquisition by a Receivables Subsidiary in connection with a Qualified Receivables Transaction of Equity Interests of a trust or other Person established by such Receivables Subsidiary to effect such Qualified Receivables Transaction; and any other Investment by Concentra or a Subsidiary of Concentra in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a Qualified Receivables Transaction customary for such transactions;

 

 

(17)           Investments, loans and advances to any Captive Insurance Subsidiary in an amount equal to (i) the capital required under the applicable laws or regulations of the jurisdiction in which such Captive Insurance Subsidiary is formed or determined by independent actuaries as prudent and necessary capital to operate such Captive Insurance Subsidiary plus (ii) any reasonable general corporate and overhead expenses of such Captive Insurance Subsidiary;

 

(18)           Investments in joint ventures in an amount not to exceed the greater of $250.0 million and 62.5% of LTM Adjusted EBITDA at such time outstanding at any time; provided that (i) substantially all of the business activities of any such joint venture consists of owning or operating facilities of Concentra or a Restricted Subsidiary of Concentra and (ii) a majority of the Voting Stock of such Person is owned by Concentra, its Restricted Subsidiaries and/or other Persons that are not Affiliates of Concentra;

 

(19)           Guarantees of Indebtedness of Concentra or a Restricted Subsidiary permitted under Section 4.09 and performance guarantees in the ordinary course of business;

 

(20)          Investments in Unrestricted Subsidiaries in an amount not to exceed the greater of (i) $100.0 million and (ii) 25% of LTM Adjusted EBITDA;

 

(21)          additional Investments; provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) immediately after giving effect to such Investment on a pro forma basis, the Total Leverage Ratio does not exceed 5.00 to 1.00; and

 

(22)          payments, loans, advances to, and investments in, Consolidated Practices in the ordinary course of business and consistent with past practice in satisfaction of obligations under any management services agreements.

 

“Permitted Liens” means:

 

(1)            Liens on assets of Concentra or any of its Restricted Subsidiaries securing Indebtedness in an amount not to exceed the maximum amount of Indebtedness permitted by Section 4.09(b)(1) hereof;

 

(2)            Liens in favor of the Issuer or the Guarantors;

 

(3)            Liens on property or assets of a Person existing at the time such Person is merged with or into, consolidated with or acquired by Concentra or any Restricted Subsidiary of Concentra; provided that such Liens were in existence prior to the contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Person merged into, consolidated with or acquired by Concentra or such Restricted Subsidiary;

 

(4)            Liens on property (including Capital Stock) existing at the time of acquisition of the property by Concentra or any Restricted Subsidiary of Concentra; provided that such Liens were in existence prior to such acquisition and not incurred in contemplation of such acquisition;

 

 

(5)            Liens (including deposits and pledges) to secure the performance of public or statutory obligations, progress payments, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business;

 

(6)            Liens to secure Indebtedness (including Capital Lease Obligations) permitted by Section 4.09(b)(4) and any Permitted Refinancing Indebtedness in respect thereof, in each case, covering only the assets acquired, constructed or improved with, financed or re-financed by such Indebtedness;

 

(7)            Liens existing on the Escrow Release Date (other than Liens described in clause (1) above), plus renewals and extensions of such Liens;

 

(8)            Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

 

(9)            Liens imposed by law, such as carriers’, warehousemen’s, landlord’s, materialmen’s, laborers’, employees’, suppliers’ and mechanics’ Liens, in each case, incurred in the ordinary course of business;

 

(10)          survey exceptions, title defects, encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that do not materially interfere with the ordinary conduct of the business of Concentra and its Restricted Subsidiaries, taken as a whole;

 

(11)          Liens created for the benefit of (or to secure) the Notes (or the Note Guarantees);

 

(12)          Liens to secure any Permitted Refinancing Indebtedness in respect of Indebtedness secured by Liens permitted by clause (3), (4), (6), (7) or (12) of this definition; provided, however, that:

 

(a)            the new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Indebtedness (plus improvements and accessions to, such property or proceeds or distributions thereof); and

 

(b)            the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount, or, if greater, committed amount, of the Permitted Refinancing Indebtedness and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal, refunding, refinancing, replacement, defeasance or discharge;

 

(13)          other Liens with respect to obligations that do not exceed the greater of (x) $150.0 million and (y) 37.5% of LTM Adjusted EBITDA at such time;

 

(14)          Liens incurred in connection with a Qualified Receivables Transaction (which, in the case of Concentra and its Restricted Subsidiaries (other than Receivables Subsidiaries) shall be limited to receivables and related assets referred to in the definition of Qualified Receivables Transaction);

 

 

(15)          security for the payment of workers’ compensation, unemployment insurance, other social security benefits or other insurance-related obligations (including, but not limited to, in respect of deductibles, self-insured retention amounts and premiums and adjustments thereto) entered into in the ordinary course of business;

 

(16)          deposits or pledges in connection with bids, tenders, leases and contracts (other than contracts for the payment of money) entered into in the ordinary course of business;

 

(17)           zoning restrictions, easements, licenses, reservations, provisions, encroachments, encumbrances, protrusion permits, servitudes, covenants, conditions, waivers, restrictions on the use of property or minor irregularities of title (and with respect to leasehold interests, mortgages, obligations, liens and other encumbrances incurred, created, assumed or permitted to exist and arising by, through or under a landlord or owner of the leased property, with or without consent of the lessee), in each case, not materially interfering with the ordinary conduct of the business of Concentra and its Restricted Subsidiaries, taken as a whole;

 

(18)          leases, subleases, licenses or sublicenses to third parties not interfering in any material respect with the business of Concentra or any Restricted Subsidiary;

 

(19)          Liens securing Hedging Obligations entered into to protect against fluctuations in interest rates, exchange rates and commodity prices;

 

(20)          Liens arising out of judgments, decrees, orders or awards in respect of which Concentra shall in good faith be prosecuting an appeal or proceedings for review which appeal or proceedings shall not have been finally terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;

 

(21)          Liens on the Equity Interests of an Unrestricted Subsidiary that secure Indebtedness or other obligation of such Unrestricted Subsidiary;

 

(22)          Liens on the assets of Non-Guarantor Subsidiaries and Foreign Subsidiaries securing Indebtedness of the Non-Guarantor Subsidiaries and Foreign Subsidiaries that were permitted by the terms of this Indenture to be incurred;

 

(23)          Liens arising from filing Uniform Commercial Code financing statements regarding leases or precautionary Uniform Commercial Code financings statements or similar filings;

 

(24)          Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection and (ii) in favor of banking institution encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

 

(25)          Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

 

(26)          Liens arising out of permitted sale and leaseback transactions;

 

(27)          Liens created or deemed to exist by the establishment of trusts for the purpose of satisfying government reimbursement program costs and other actions or claims pertaining to the same or related matters or other medical reimbursement programs;

 

 

(28)          Liens solely on any cash earnest money deposits made by Concentra or any Restricted Subsidiary with any letter of intent or purchase agreement permitted by the terms of this Indenture; and

 

(29)          Liens deemed to exist by reason of (x) any encumbrance or restriction (including put and call arrangements) with respect to the Equity Interests of any joint venture or similar arrangement pursuant to any joint venture or similar agreement or (y) any encumbrance or restriction imposed under any contract for the sale by Concentra or any of its Restricted Subsidiaries of the Equity Interests of any Restricted Subsidiary, or any business unit or division of the business or any Restricted Subsidiary permitted by the terms of this Indenture; provided that in each case such Liens shall extend only to the relevant Equity Interests.

 

“Permitted Parent” means any direct or indirect parent holding company of Concentra, so long as no “person” (as that term is used in Section 13(d) of the Exchange Act) other than, prior to the Distribution, one or more Persons listed in clause (i) of the definition of “Permitted Holders” or one or more holding companies is the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company, measured by voting power rather than number of shares.

 

“Permitted Refinancing Indebtedness” means any Indebtedness of Concentra or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, replace, defease or discharge other Indebtedness of Concentra or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:

 

(1)            the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness extended, renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees, commissions, discounts and expenses, including premiums, incurred in connection therewith);

 

(2)            either (a) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged or (b) all scheduled payments on or in respect of such Permitted Refinancing Indebtedness (other than interest payments) shall be at least 91 days following the final scheduled maturity of the Notes;

 

(3)            if the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased or discharged; and

 

(4)            such Indebtedness is incurred:

 

 (a)            by Concentra or by the Restricted Subsidiary who is the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged;

 

 (b)            by any Guarantor if the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is a Guarantor; or

 

 (c)            by any Non-Guarantor Subsidiary if the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is a Non-Guarantor Subsidiary.

 

 

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

“Private Placement Legend” means the legend set forth in Section 2.06(g)(1) to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.

 

“Pro Forma Cost Savings” means, with respect to any period, the reduction in net costs and related adjustments that (i) were directly attributable to an acquisition, merger, consolidation or disposition that occurred during the four-quarter reference period or subsequent to the four-quarter reference period and on or prior to the Calculation Date and calculated on a basis that is consistent with Regulation S-X under the Securities Act as in effect and applied as of the Issue Date, (ii) were actually implemented by the business that was the subject of any such acquisition, merger, consolidation or disposition within 18 months after the date of the acquisition, merger, consolidation or disposition and prior to the Calculation Date that are supportable and quantifiable by the underlying accounting records of such business or (iii) relate to the business that is the subject of any such acquisition, merger, consolidation or disposition and that the Issuer reasonably determines are probable based upon specifically identifiable actions to be taken within 18 months of the date of the acquisition, merger, consolidation or disposition, as if all such reductions in costs had been effected as of the beginning of such period.

 

“Purchase Agreement” means the purchase agreement in respect of the Notes, dated as of June 26, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified), by and between the Escrow Issuer and J.P. Morgan Securities LLC, as representative of the several initial purchasers.

 

“QIB” means a “qualified institutional buyer” as defined in Rule 144A.

 

“Qualified Capital Stock” means any Capital Stock that is not Disqualified Stock.

 

“Qualified Proceeds” means any of the following or any combination of the following:

 

(1)            Cash Equivalents;

 

(2)            the Fair Market Value of assets that are used or useful in the Permitted Business; and

 

(3)            the Fair Market Value of the Capital Stock of any Person engaged primarily in a Permitted Business if, in connection with the receipt by Concentra or any of its Restricted Subsidiaries of such Capital Stock, such Person becomes a Restricted Subsidiary or such Person is merged or consolidated into Concentra or any Restricted Subsidiary;

 

provided that (i) for purposes of clause (3) of Section 4.07(a), Qualified Proceeds shall not include Excluded Contributions and (ii) the amount of Qualified Proceeds shall be reduced by the amount of payments made in respect of the applicable transaction which are permitted under clause (8) of Section 4.11(b).

 

 

“Qualified Receivables Transaction” means any transaction or series of transactions entered into by Concentra or any of its Subsidiaries pursuant to which Concentra or any of its Subsidiaries sells, conveys or otherwise transfers, or grants a security interest, to:

 

(1)            a Receivables Subsidiary (in the case of a transfer by Concentra or any of its Subsidiaries, which transfer may be effected through Concentra or one or more of its Subsidiaries); and

 

(2)            if applicable, any other Person (in the case of a transfer by a Receivables Subsidiary),

 

in each case, in any accounts receivable (including health care insurance receivables), instruments, chattel paper, general intangibles and similar assets (whether now existing or arising in the future, the “Receivables”) of Concentra or any of its Subsidiaries, and any assets related thereto, including, without limitation, all collateral securing such Receivables, all contracts, contract rights and all guarantees or other obligations in respect of such Receivables, proceeds of such Receivables and any other assets, which are customarily transferred or in respect of which security interests are customarily granted in connection with receivables financings and asset securitization transactions of such type, together with any related transactions customarily entered into in a receivables financings and asset securitizations, including servicing arrangements.

 

“Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Qualified Receivables Transaction.

 

“Receivables Subsidiary” means a Subsidiary of Concentra which engages in no activities other than in connection with the financing of accounts receivable and in businesses related or ancillary thereto and that is designated by the Board of Directors of Concentra (as provided below) as a Receivables Subsidiary,

 

(A)           no portion of the Indebtedness or any other Obligations (contingent or otherwise) of which:

 

 (1)            is guaranteed by Concentra or any Subsidiary of Concentra (excluding guarantees of Obligations (other than the principal of, and interest on, Indebtedness) pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables Transaction);

 

 (2)            is recourse to or obligates Concentra or any Subsidiary of Concentra in any way other than pursuant to representations, warranties, covenants and indemnities customarily entered into in connection with a Qualified Receivables Transaction; or

 

 (3)            subjects any property or asset of Concentra or any Subsidiary of Concentra (other than accounts receivable and related assets as provided in the definition of Qualified Receivables Transaction), directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to representations, warranties, covenants and indemnities customarily entered into in connection with a Qualified Receivables Transaction; and

 

 

(B)            with which neither Concentra nor any Subsidiary of Concentra has any material contract, agreement, arrangement or understanding other than on terms no less favorable to Concentra or such Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of Concentra, other than as may be customary in a Qualified Receivables Transaction including for fees payable in the ordinary course of business in connection with servicing accounts receivable; and (C) with which neither Concentra nor any Subsidiary of Concentra has any obligation to maintain or preserve such Subsidiary’s financial condition or cause such Subsidiary to achieve certain levels of operating results. Any such designation by the Board of Directors of Concentra will be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of Concentra giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing conditions.

 

“Regulation S” means Regulation S promulgated under the Securities Act.

 

“Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as appropriate.

 

“Regulation S Permanent Global Note” means a permanent Global Note in the form of Exhibit A1 hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Restricted Period.

 

“Regulation S Temporary Global Note” means a temporary Global Note in the form of Exhibit A2 hereto bearing the legend set forth in Section 2.06(g)(3) deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903 of Regulation S.

 

“Replacement Preferred Stock” means any Disqualified Stock of Concentra or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace or discharge any Disqualified Stock of Concentra or any of its Restricted Subsidiaries (other than intercompany Disqualified Stock); provided that such Replacement Preferred Stock (i) is issued by Concentra or by the Restricted Subsidiary who is the issuer of the Disqualified Stock being redeemed, refunded, refinanced, replaced or discharged, and (ii) does not have an initial liquidation preference in excess of the liquidation preference plus accrued and unpaid dividends on the Disqualified Stock being redeemed, refunded, refinanced, replaced or discharged.

 

“Responsible Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Office of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who shall have responsibility for the administration of this Indenture.

 

“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.

 

“Restricted Global Note” means a Global Note bearing the Private Placement Legend.

 

“Restricted Investment” means an Investment other than a Permitted Investment.

 

“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S.

 

 

“Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary. Unless otherwise specified, all references to “Restricted Subsidiaries” or “Restricted Subsidiary” are to Restricted Subsidiaries of Concentra. For the avoidance of doubt, the Issuer shall be deemed a “Restricted Subsidiary” of Concentra for purposes hereof.

 

“Rule 144” means Rule 144 promulgated under the Securities Act.

 

“Rule 144A” means Rule 144A promulgated under the Securities Act.

 

“Rule 903” means Rule 903 promulgated under the Securities Act.

 

“Rule 904” means Rule 904 promulgated under the Securities Act.

 

“SEC” means the Securities and Exchange Commission.

 

“Secured Indebtedness” at any date means the aggregate principal amount of Indebtedness outstanding at such date described in clause (a) of the definition of “Total Leverage Ratio” that in each case is then secured by Liens on any property or assets of Concentra or any Restricted Subsidiary; provided that Concentra may elect to treat Indebtedness under revolving credit commitments as having been incurred at the time the related revolving credit commitment is established, in which case, Secured Indebtedness shall have been deemed to have been incurred at the time such commitment is provided (and shall thereafter be deemed to be outstanding in the amount of such commitment until such commitment is terminated) but not at the time of any drawing thereunder (or replacement thereof to the extent such replacement or refinancing does not increase the amount of such commitment).

 

“Secured Leverage Ratio” means, on any date, the ratio of (a) Secured Indebtedness (minus the amount of unrestricted cash and Cash Equivalents held, on such date, by Concentra and the Restricted Subsidiaries on such date) on such date to (b) Consolidated Adjusted EBITDA for the most recent period of four consecutive fiscal quarters of Concentra ended prior to such date for which internal financial statements are available, in the case of this clause (b), with such adjustments to Consolidated Adjusted EBITDA for such period as are consistent with those set forth in the definition of Fixed Charge Coverage Ratio.

 

“Securities Act” means the Securities Act of 1933, as amended.

 

“Select” means Select Medical Holdings Corporation.

 

“Separation” means the closing of the Initial Public Offering and the entry into the Separation Documents.

 

“Separation Agreement” means the Separation Agreement between SMC and Concentra, to be dated on or prior to the Escrow Release Date.

 

“Separation Documents” means the Separation Agreement, Tax Matters Agreement, Transition Services Agreement and Employee Matters Agreement, certain commercial agreements and other ancillary agreements, and any other instruments, assignment, documents and agreements executed in connection with the implementation of the transactions contemplated by any of the foregoing.

 

“Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date. For purposes of determining whether an Event of Default has occurred, if any group of Restricted Subsidiaries as to which a particular event has occurred and is continuing at any time would be, taken as a whole, a “Significant Subsidiary” then such event shall be deemed to have occurred with respect to a Significant Subsidiary.

 

 

“SMC” means Select Medical Corporation.

 

“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Issue Date (or, if later, the date such Indebtedness was originally incurred), and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

 

“Subsidiary” means, with respect to any specified Person:

 

(1)           any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof);

 

(2)           any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof); and

 

(3)           any third party professional corporation or similar business entity with which Concentra or any Subsidiary of Concentra has an exclusive management arrangement under which it manages the business of such entity and whose financial statements are consolidated with Concentra’s financial statements for financial reporting purposes (it being understood that the limitations set forth in clause (2) of the definition of Consolidated Net Income shall not apply to any such entity).

 

“Tax Matters Agreement” has the meaning given in the Offering Memorandum.

 

“Total Assets” means the total consolidated assets of Concentra and its consolidated subsidiaries as set forth on the most recent consolidated balance sheet of Concentra.

 

“Total Leverage Ratio” means, on any date, the ratio of (a) Indebtedness of Concentra and its Restricted Subsidiaries outstanding on such date consisting of Indebtedness for borrowed money, Attributable Indebtedness, purchase money debt, unreimbursed amounts under letters of credit (subject to the proviso below) and all Guarantees of the foregoing, in each case (except in the case of Guarantees) in an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of acquisition accounting in connection with any acquisition constituting an Investment permitted under this Indenture); minus the amount of unrestricted cash and Cash Equivalents held, on such date, by Concentra and the Restricted Subsidiaries on such date; provided that such Indebtedness shall not include Indebtedness in respect of (i) letters of credit, except to the extent of unreimbursed amounts under commercial letters of credit that are not reimbursed within three (3) Business Days after such amount is drawn and (ii) Unrestricted Subsidiaries, to (b) Consolidated Adjusted EBITDA for the most recent period of four consecutive fiscal quarters of Concentra ended prior to such date for which internal financial statements are available, in the case of this clause (b), with such adjustments to Consolidated Adjusted EBITDA for such period as are consistent with those set forth in the definition of Fixed Charge Coverage Ratio.

 

 

“Transaction Expenses” means any fees or expenses incurred or paid by any direct or indirect parent company of CHSI, Concentra or any of its (or their) Subsidiaries in connection with the Transactions.

 

“Transactions” means (1) the offering of the Notes on the Issue Date, (2) the entering into of the Credit Agreement and the borrowing of the loans thereunder, (3) the Closing Date Distribution, (4) the Separation, (5) the Distribution, (6) any transaction pursuant to the Separation Documents, (7) the payment of Transaction Expenses, and (8) the payment by Concentra to SMC, in connection with the transactions described in clauses (1) and (2) of this definition, of a dividend payable in the form of a promissory note and cash.

 

“Transition Services Agreement” has the meaning given in the Offering Memorandum.

 

“Treasury Rate” means, with respect to any Make-Whole Redemption Date, the weekly average rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two Business Days prior to such Make-Whole Redemption Date) of the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published in Federal Reserve Statistical Release H. 15 with respect to each applicable day during such week (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Make-Whole Redemption Date to July 15, 2027; provided, however, that if the period from such Make-Whole Redemption Date to July 15, 2027 is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.

 

“Trustee” means the party named as such in the preamble to this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

 

“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.

 

“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.

 

“Unrestricted Subsidiary” means any Subsidiary of the Issuer that is designated by the Board of Directors of Concentra as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors and any Subsidiary of an Unrestricted Subsidiary.

 

“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.

 

“Voting Stock” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

 

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

 

(1)           the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

 

(2)           the then outstanding principal amount of such Indebtedness.

 

“Wholly Owned Subsidiary” of any specified Person means a Subsidiary of such Person all of the outstanding Capital Stock or other ownership interest of which (other than directors’ qualifying shares) will at that time be owned by such Person or by one or more Wholly Owned Subsidiaries of such person.

 

SECTION 1.02               Other Definitions.

 

Term	Defined in Section
“Affiliate Transaction”	4.11
“Asset Sale Offer”	3.09
“Authentication Order”	2.02
“Calculation Date”	1.01 (Definition of “Fixed Charge Coverage Ratio”)
“Change of Control Offer”	4.15
“Change of Control Payment”	4.15
“Change of Control Payment Date”	4.15
“CHSI”	Preamble
“Covenant Defeasance”	8.03
“DTC”	2.03
“Escrow Account”	Recitals
“Escrow Agreement”	Recitals
“Escrowed Funds”	3.10
“Escrow Issuer”	Preamble
“Escrow Merger”	Recitals
“Escrow Release”	3.10
“Escrow Release Conditions”	3.10
“Escrow Release Date”	3.10
“Event of Default”	6.01
“Excess Proceeds”	4.10
“incur”	4.09
“LCT Election”	1.03
“LCT Test Date”	1.03
“Legal Defeasance”	8.02
“Offer Amount”	3.09
“Offer Period”	3.09
“Outside Date”	3.10
“Paying Agent”	2.03
“Permitted Debt”	4.09
“Payment Default”	6.01
“Purchase Date”	3.09
“Registrar”	2.03
“Restricted Payments”	4.07
“Special Mandatory Redemption”	3.10
“Special Mandatory Redemption Date”	3.10
“Special Mandatory Redemption Event”	3.10
“Special Mandatory Redemption Price”	3.10
“Special Redemption Notice”	3.10
“Subsequent Transaction”	1.03
“Temporary Notes”	2.10
“TIA”	1.04

 

 

SECTION 1.03               Financial calculations for Limited Condition Transaction.

 

Notwithstanding any provision to the contrary herein, as it relates to any action being taken solely in connection with a Limited Condition Transaction, for purposes of (i) determining compliance with any provision of this Indenture which requires the calculation of any financial ratio or test, including the Secured Leverage Ratio, Total Leverage Ratio and Fixed Charge Coverage Ratio, or (ii) testing availability under baskets set forth in this Indenture (including baskets determined by reference to LTM Adjusted EBITDA), in each case, at the option of the Issuer (the Issuer’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted under this Indenture shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Transaction (and the other transactions to be entered into in connection therewith, including any incurrence of Indebtedness and the use of proceeds thereof, as if they had occurred on the first day of the most recent period of four consecutive fiscal quarters of Concentra ended prior to such date for which internal financial statements are available (except with respect to any incurrence or repayment of Indebtedness for purposes of the calculation of any leverage-based test or ratio, which shall in each case be treated as if they had occurred on the last day of such period)), the Issuer would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with; provided that if financial statements for one or more subsequent fiscal periods shall have become available, the Issuer may elect, in its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date. For the avoidance of doubt, if the Issuer has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in LTM Adjusted EBITDA of Concentra or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been complied with as a result of such fluctuations. If the Issuer has made an LCT Election for any Limited Condition Transaction, then in connection with any calculation of any ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any Investment, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Concentra, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement or irrevocable notice for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Indenture, any such ratio, test or basket shall be required to be satisfied  on a pro forma basis (i) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (ii) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated

 

 

SECTION 1.04          Trust Indenture Act.

 

This Indenture is not qualified under, and, other than as expressly set forth herein, does not incorporate or include any of the provisions of, the Trust Indenture Action of 1939, as amended (the “TIA”).

 

SECTION 1.05           Rules of Construction and Calculation.

 

(a)            Unless the context otherwise requires:

 

(1)         a term has the meaning assigned to it;

 

(2)         an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

 

(3)         “or” is not exclusive;

 

(4)         words in the singular include the plural, and in the plural include the singular;

 

(5)          “will” shall be interpreted to express a command;

 

(6)          provisions apply to successive events and transactions;

 

(7)          references to sections of or rules under the Securities Act will be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;

 

(8)         “including” shall be interpreted to mean “including without limitation”; and

 

(9)          references to Sections, Articles and Exhibits shall refer to Sections, Articles and Exhibits of this Indenture.

 

(b)           All financial calculations regarding Concentra and its Subsidiaries for periods prior to the Issue Date shall be based upon the consolidated financial statements of Concentra and its Subsidiaries.

 

ARTICLE 2.

 

THE NOTES

 

SECTION 2.01           Form and Dating.

 

(a)            General. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibits A1 or A2 attached hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage (provided that any such notation, legend or endorsement required by usage is in a form reasonably acceptable to the Issuer). Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

 

The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

 

(b)            Global Notes. Notes issued in global form shall be substantially in the form of Exhibits A1 or A2 attached hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A1 attached hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, repurchases, and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 and shall be made on the records of the Trustee and the Depositary.

 

(c)            Temporary Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, at its New York office, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. The Restricted Period shall be terminated upon the receipt by the Trustee of:

 

(1)          a written certificate from the Depositary certifying that it has received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who shall take delivery of a beneficial ownership interest in a 144A Global Note bearing a Private Placement Legend, all as contemplated by Section 2.06(b)); and

 

(2)          an Officer’s Certificate from the Issuer or Concentra.

 

Following the termination of the Restricted Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.

 

SECTION 2.02            Execution and Authentication.

 

At least one Officer must sign the Notes for the Issuer by manual or facsimile signature.

 

 

If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.

 

A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature of the Trustee shall be conclusive evidence that the Note has been duly authenticated under this Indenture.

 

The Trustee shall authenticate and deliver: (i) on the Issue Date, an aggregate principal amount of $650.0 million 6.875% Senior Notes due 2032 and (ii) Additional Notes for an original issue in an aggregate principal amount specified in an Authentication Order pursuant to this Section 2.02, in each case upon a written order of the Issuer signed by one Officer (an “Authentication Order”). Such Authentication Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of the Notes is to be authenticated.

 

The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.

 

SECTION 2.03            Registrar and Paying Agent.

 

The Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Issuer may change any Paying Agent or Registrar without notice to any Holder. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.

 

The Issuer initially appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.

 

The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.

 

SECTION 2.04           Paying Agent To Hold Money in Trust.

 

The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and shall notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require in writing a Paying Agent to pay all money held by it in trust to the Trustee. The Issuer at any time may require in writing a Paying Agent to pay all money held by it in trust to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have no further liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.

 

 

SECTION 2.05           Holder Lists.

 

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.

 

SECTION 2.06          Transfer and Exchange.

 

(a)            Transfer and Exchange of Global Notes. A Global Note may not be transferred except in whole (but not in part) by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes shall be exchanged by the Issuer for Definitive Notes if:

 

(1)          the Depository (a) notifies the Issuer that it is unwilling or unable to continue as Depositary for the Global Notes or (b) has ceased to be a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuer within 120 days after the date of such notice from the Depositary;

 

(2)          there has occurred and is continuing a Default or an Event of Default with respect to the Notes.

 

Upon the occurrence of any of the preceding events in (1) or (2) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c).

 

(b)           Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

 

(1)           Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).

 

 

(2)           All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either:

 

(A)       both:

 

(i)            a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and

 

(ii)            instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or

 

(B)        both:

 

(i)            a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and

 

(ii)            instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in clause (i) above; provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903 under the Securities Act.

 

Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h).

 

(3)           Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:

 

(A)           if the transferee shall take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and

 

(B)           if the transferee shall take delivery in the form of a beneficial interest in the Regulation S Global Note then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.

 

 

(4)            Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:

 

(A)           if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or

 

(B)           if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

and, in each such case, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

If any such transfer is effected pursuant to this Section 2.06(b)(4) at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to this Section 2.06(b)(4).

 

Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

 

(c)           Transfer or Exchange of Beneficial Interests for Definitive Notes.

 

(1)           Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:

 

(A)           if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;

 

(B)           if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

 

(C)           if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

 

 

(D)           if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

 

(E)           if such beneficial interest is being transferred to the Issuer or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

 

(F)           if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

 

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuer shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

 

(2)            Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes. Notwithstanding Sections 2.06(c)(1)(A) and (C), a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.

 

(3)            Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:

 

(A)          if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or

 

(B)          if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

and, in each such case, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

 

(4)            Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2), the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h), and the Issuer shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(4) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(4) shall not bear the Private Placement Legend.

 

(d)            Transfer and Exchange of Definitive Notes for Beneficial Interests.

 

(1)            Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

 

(A)          if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;

 

(B)           if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

 

(C)            if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

 

(D)           if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

 

(E)           if such Restricted Definitive Note is being transferred to the Issuer or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

 

(F)           if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

 

the Trustee shall cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of the applicable Global Note.

 

 

(2)            Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:

 

(A)          if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or

 

(B)           if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

and, in each such case, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

Upon satisfaction of the conditions of this Section 2.06(d)(2), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.

 

(3)            Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.

 

If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes transferred or exchanged pursuant to subparagraph (2)(B), (2)(D) or (3) above.

 

(e)            Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).

 

 

(1)            Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:

 

(A)          if the transfer shall be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

 

(B)           if the transfer shall be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

 

(C)           if the transfer shall be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications required by item (3) thereof, if applicable.

 

(2)            Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:

 

(A)          if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

(B)           if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

and, in each such case, if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

(3)            Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.

 

(f)            [Reserved].

 

(g)           Legends. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.

 

 

(1)           Private Placement Legend.

 

(A)          Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form.

 

“THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AS SET FORTH BELOW BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT (“REGULATION S”), (2) AGREES TO OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER SUCH NOTE PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD THEN IMPOSED BY RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION) ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION PURSUANT TO REGULATION S IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S OR THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.”

 

(B)           Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), or (e)(3) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.

 

(2)            Global Note Legend. Each Global Note shall bear a legend in substantially the following form:

 

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.01 AND SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.

 

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

 

(3)           Regulation S Temporary Global Note Legend. Each Regulation S Temporary Global Note shall bear a legend in substantially the following form.

 

“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL

 

NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE. THE HOLDER OF THIS NOTE BY ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IF IT IS A PURCHASER IN A SALE THAT OCCURS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S OF THE SECURITIES ACT, IT ACKNOWLEDGES THAT, UNTIL EXPIRATION OF THE “40-DAY DISTRIBUTION COMPLIANCE PERIOD” WITHIN THE MEANING OF RULE 903 OF REGULATION S, ANY OFFER OR SALE OF THIS NOTE SHALL NOT BE MADE BY IT TO A U.S. PERSON TO OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON WITHIN THE MEANING OF RULE 902(k) UNDER THE SECURITIES ACT”

 

(h)            Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who shall take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who shall take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

 

 

(i)            General Provisions Relating to Transfers and Exchanges.

 

(1)           To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 or at the Registrar’s request.

 

(2)           No service charge shall be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.06).

 

(3)           The Registrar shall not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

 

(4)           All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

 

(5)           The Issuer shall not be required:

 

(A)           to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection;

 

(B)           to register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or

 

(C)           to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.

 

(6)           Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.

 

(7)            The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02.

 

(8)            All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.

 

(9)            Neither the Trustee nor the Registrar shall be under any obligation or duty to determine or inquire as to compliance with the Securities Act (including any rules or regulations promulgated thereunder) or any state securities laws that may be applicable in connection with or with respect to any transfer of any interest in any Note (including any transfers between or among beneficial owners of interests in any Global Note) or to monitor, determine or inquire as to compliance with any restriction on transfer imposed under this Indenture with respect to transfers of interests in any security (including any transfers between or among beneficial owners of interests in any Global Notes); except that the Trustee shall be under a duty to require delivery of such certificates and other documentation, if any, as are expressly required in the applicable circumstance, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance on their face with the express requirements hereof. The Trustee shall have no responsibility for (i) the actions or omissions of the Depositary, or for the accuracy of the books or records of the Depositary and (ii) transfers, of which it has no knowledge, between or among beneficial owners of interests in the same Global Note.

 

 

SECTION 2.07           Replacement Notes.

 

If any mutilated Note is surrendered to the Trustee or the Registrar and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer may charge for its expenses in replacing a Note.

 

Every replacement Note is an additional obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

 

SECTION 2.08           Outstanding Notes.

 

The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Subject to Section 2.09, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.

 

If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.

 

If the principal amount of any Note is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue.

 

If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.

 

SECTION 2.09           Treasury Notes.

 

In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or any of its Subsidiaries, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.

 

 

SECTION 2.10          Temporary Notes.

 

Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes (“Temporary Notes”). Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for Temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate Definitive Notes in exchange for Temporary Notes.

 

Holders of Temporary Notes shall be entitled to all of the benefits of this Indenture.

 

SECTION 2.11           Cancellation.

 

The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of such canceled Notes (subject to the record retention requirement of the Exchange Act). Certification of the disposal of all canceled Notes shall be delivered to the Issuer upon its request therefor. The Issuer may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation. If the Issuer shall acquire any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.11.

 

SECTION 2.12           Defaulted Interest.

 

If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01. The Issuer shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuer shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.

 

SECTION 2.13           CUSIP Numbers.

 

The Issuer in issuing the Notes may use CUSIP numbers and corresponding ISIN numbers (if then generally in use), and, if so, the Trustee will use CUSIP numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption will not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee of any change in the CUSIP numbers.

 

SECTION 2.14           Issuance of Additional Notes.

 

The Issuer will be entitled, from time to time, subject to its compliance with Section 4.09, without consent of the Holders, to issue Additional Notes under this Indenture with identical terms as the Initial Notes issued on the Issue Date other than with respect to (i) the date of issuance, (ii) the issue price, (iii) the amount of interest payable on the first interest payment date and (iv) any adjustments in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws). The Initial Notes issued on the Issue Date and any Additional Notes will be treated as a single class for all purposes under this Indenture.

 

 

With respect to any Additional Notes, the Issuer will set forth in an Officer’s Certificate pursuant to a resolution of the Board of Directors of Concentra, copies of which will be delivered to the Trustee, the following information:

 

(1)           the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;

 

(2)           the issue price, the issue date and the CUSIP number of such Additional Notes; provided, however, that no Additional Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Internal Revenue Code of 1986, as amended; and

 

(3)           whether such Additional Notes will be subject to transfer restrictions.

 

ARTICLE 3.

 

REDEMPTION AND PREPAYMENT

 

SECTION 3.01               Notices to Trustee.

 

If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 5 of the Notes, the Issuer shall furnish to the Trustee, at least 10 days but not more than 60 days before the redemption date, an Officer’s Certificate setting forth:

 

(1)           the clause of this Indenture pursuant to which the redemption shall occur;

 

(2)           the redemption date;

 

(3)           the principal amount of Notes to be redeemed; and

 

(4)           the redemption price.

 

SECTION 3.02               Selection of Notes To Be Redeemed or Purchased.

 

If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee shall select Notes for redemption or purchase on a pro rata basis except:

 

(1)           if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or

 

(2)           if otherwise required by law.

 

In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 10 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously called for redemption or purchase.

 

 

The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 and integral multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.

 

SECTION 3.03              Notice of Redemption.

 

Subject to the provisions of Section 3.09, at least 10 days but not more than 60 days before a redemption date, the Issuer shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 11 of this Indenture.

 

The notice shall identify the Notes to be redeemed (including CUSIP Number(s)) and shall state:

 

(1)           the redemption date;

 

(2)           the redemption price;

 

(3)           if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note;

 

(4)           the name and address of the Paying Agent;

 

(5)           that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

 

(6)           that, unless the Issuer defaults in making such redemption payment and interest on Notes called for redemption ceases to accrue on and after the redemption date;

 

(7)           the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and

 

(8)           that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.

 

At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name and at its expense; provided, however, that the Issuer has delivered to the Trustee, at least 45 days prior to the redemption date (or such shorter period as to which the Trustee may agree), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.

 

 

SECTION 3.04            Effect of Notice of Redemption.

 

Once a notice of redemption is mailed in accordance with Section 3.03, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price, except as otherwise set forth in this Section 3.04. Notice of any redemption of the Notes in connection with a transaction or an event (including an Equity Offering, an incurrence of Indebtedness or a Change of Control) may, at the Issuer’s discretion, be given prior to the completion or the occurrence thereof and any such redemption or notice may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of the related transaction or event. In addition, if such redemption is subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the redemption date may be delayed until such time (including more than 60 days after the date the notice of redemption was delivered) as any or all conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date as so delayed. In addition, the Issuer may provide in such notice that payment of the redemption price and performance of the Issuer’s obligations with respect to such redemption may be performed by another Person.

 

SECTION 3.05           Deposit of Redemption or Purchase Price.

 

On the relevant redemption or purchase date, the Issuer shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or purchased.

 

If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase unless the applicable notice of redemption is conditional in accordance with Section 3.04 and the relevant conditions are not satisfied or waived. If a Note is redeemed or purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.

 

SECTION 3.06           Notes Redeemed or Purchased in Part.

 

Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and, upon receipt of an Authentication Order, the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered.

 

SECTION 3.07           Optional Redemption.

 

The Notes are subject to optional redemption as provided in Section 5 of the Notes. Any redemption of the Notes pursuant to such Section shall be made pursuant to the provisions of Sections 3.01 through 3.06.

 

 

SECTION 3.08         Mandatory Redemption

 

Except as set forth with respect to the Special Mandatory Redemption, other than with respect to any such obligations that may arise as set forth under Sections 4.10 or 4.15, the Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

SECTION 3.09           Offer To Purchase by Application of Excess Proceeds.

 

In the event that, pursuant to Section 4.10, the Issuer is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it shall follow the procedures specified below.

 

The Asset Sale Offer shall be made to all Holders and if the Issuer elects (or is required by the terms of other pari passu indebtedness), all holders of other Indebtedness that is pari passu with the Notes. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the termination of the Offer Period (the “Purchase Date”), the Issuer shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness, if any, (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made pursuant to Section 4.01.

 

If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.

 

Upon the commencement of an Asset Sale Offer, the Issuer shall send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which shall govern the terms of the Asset Sale Offer, shall state:

 

(1)           that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 and the length of time the Asset Sale Offer shall remain open;

 

(2)           the Offer Amount, the purchase price and the Purchase Date;

 

(3)           that any Note not tendered or accepted for payment shall continue to accrue interest;

 

(4)           that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;

 

(5)           that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in the denomination of $2,000 and integral multiples of $1,000 in excess thereof only;

 

(6)           that Holders electing to have Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Issuer, a Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;

 

 

(7)            that Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than on the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;

 

(8)            that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Issuer shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased); and

 

(9)            that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

 

On or before the Purchase Date, the Issuer shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Issuer in accordance with the terms of this Section 3.09. The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon written request from the Issuer, shall authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Asset Sale Offer on the Purchase Date.

 

Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06.

 

SECTION 3.10            Escrow of Proceeds; Special Mandatory Redemption.

 

(a)            The initial funds deposited in the Escrow Account, and all other funds, securities, interest, dividends, distributions, earnings and other property and payments credited to the Escrow Account in connection with the notes are referred to, collectively, as the “Escrowed Funds.” In the Escrow Agreement, the Escrow Issuer will grant the Trustee, for the benefit of the Trustee and the Holders of the Notes, a security interest in the Escrow Account and the Escrowed Funds to secure the Special Mandatory Redemption (as defined below); provided, however, that such Lien and security interest shall be automatically extinguished on and terminate at the time of the Escrow Release (as defined below).

 

(b)            Pursuant to the Escrow Agreement, the Escrow Agent will release the Escrowed Funds (the “Escrow Release”) to, or at the order of, the Escrow Issuer (the date of such release being referred to as the “Escrow Release Date”) upon receipt by each of the Escrow Agent and the Trustee of an Officer’s Certificate from the Escrow Issuer or Concentra addressed to the Escrow Agent and the Trustee on or prior to September 30, 2024 (the “Outside Date”), certifying that the Escrow Release Conditions (as defined in the Escrow Agreement) will be met promptly following the Escrow Release on the Escrow Release Date. Upon the occurrence of the Escrow Release, the Escrow Account shall be reduced to zero and the Escrowed Funds and interest accrued thereon from the date of deposit shall be paid out in accordance with the terms of the Escrow Agreement.

 

 

(c)            In the event that (i) the Escrow Agent shall not have received the Officer’s Certificate described above on or prior to the Outside Date or (ii) Concentra shall notify the Escrow Agent in writing that Concentra has determined that the Separation will not be consummated on or prior to the Outside Date or otherwise announces that the Separation and the Initial Public Offering have been or will be abandoned (each such event being a “Special Mandatory Redemption Event”), the Escrow Issuer will redeem the notes (the “Special Mandatory Redemption”) at a price equal to 100% of the initial issue price of the Notes, plus accrued and unpaid interest from the Issue Date, or from the most recent date to which interest has been paid, to, but not including the Special Mandatory Redemption Date (the “Special Mandatory Redemption Price”). Within three Business Days following the occurrence of a Special Mandatory Redemption Event, the Escrow Issuer shall deliver a notice to the Trustee and the Escrow Agent of the occurrence thereof (a “Special Redemption Notice”). Within five Business Days after the Special Mandatory Redemption Event or as otherwise required by DTC’s procedures, the Escrow Issuer will redeem the notes at the Special Mandatory Redemption Price pursuant to the procedures described in Section 3.10(d) (the date of such redemption, the “Special Mandatory Redemption Date”).

 

(d)            If the Escrow Agent receives a Special Redemption Notice, the Escrow Agent will liquidate all Escrowed Funds then held by it not later than the last Business Day prior to the Special Mandatory Redemption Date. On the Business Day prior to the Special Mandatory Redemption Date, the Escrow Agent shall pay to the Trustee for payment to each Holder the Special Mandatory Redemption Price for such Holder’s notes. Any redemption made pursuant to this Section 3.10 shall be made pursuant to the procedures set forth in this Indenture and the Escrow Agreement, except to the extent inconsistent with this Section 3.10, which shall control in the event of a conflict.

 

ARTICLE 4.

 

COVENANTS

 

SECTION 4.01           Payment of Notes.

 

The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than Concentra or a Subsidiary thereof, holds on the due date money deposited by or on behalf of the Issuer in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.

 

The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful. Interest on the Notes shall accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

SECTION 4.02          Maintenance of Office or Agency.

 

The Issuer shall maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.

 

 

The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

The Issuer hereby designates the New York Office of the Trustee as one such office or agency of the Issuer in accordance with Section 2.03.

 

SECTION 4.03           Reports.

 

(a)            Whether or not required by the rules and regulations of the SEC, from and after the Escrow Release Date, so long as any Notes are outstanding, Concentra shall furnish to the Trustee and the Holders:

 

(1)           all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K, if Concentra were a non-accelerated filer that was required to file such Forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” that describes Concentra’s consolidated financial condition and results of operation and, with respect to the annual information only, a report thereon by Concentra’s independent registered public accountants,

 

(2)           all current reports that would be required to be filed with the SEC on Form 8-K if Concentra were required to file such reports, and

 

(3)            simultaneously with the delivery of each set of consolidated annual and quarterly financial information referred to in clause (1) above, reasonably detailed unaudited financial information showing separately the financial position and results of Concentra and its Restricted Subsidiaries, on the one hand, and the Unrestricted Subsidiaries, on the other hand, as of and for the applicable periods covered by such financial information; provided that (x) in the case of the information required by this clause (3) to accompany delivery of each set of annual financial information referred to in clause (1) above, (A) condensed consolidating balance sheets shall only be required to be provided as of the end of the relevant fiscal year, (B) condensed consolidating statements of operations shall only be required to be provided for the relevant fiscal year, and not for any prior periods, and (C) no condensed consolidating statements of cash flows shall be required, and (y) in the case of the information required by this clause (3) to accompany delivery of each set of quarterly financial information referred to in clause (1) above, (A) condensed consolidating balance sheets shall only be required to be provided as of the end of the relevant fiscal quarter, (B) condensed consolidating statements of operations shall only be required to be provided for the relevant fiscal quarter and the then-elapsed portion of the current fiscal year, and not for any prior periods, and (C) no condensed consolidating statements of cash flows shall be required; provided, further, that in no event shall Concentra be required by this clause (3) to provide any financial information with respect to the Unrestricted Subsidiaries that would not otherwise be required with respect to non-guarantor subsidiaries by Rule 13-10 of Regulation S-X promulgated by the SEC (or any successor provision), as amended and then in effect, if Concentra had guaranteed debt securities registered with the SEC.

 

 

(b)           Notwithstanding anything to the contrary in clause (a) above, no reports required thereby will be required to contain the separate financial information for Guarantors contemplated by Rule 13-10 of Regulation S-X promulgated by the SEC. Concentra may satisfy its obligation to furnish such information to the Trustee, Cede & Co. and the Holders at any time by filing such information with the SEC. In addition, for so long as any Notes remain outstanding, Concentra shall furnish to any Beneficial Owner of Notes or to any prospective purchaser of Notes in connection with any sale thereof, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

 

(c)           If at any time any direct or indirect parent holding company of Concentra becomes a Guarantor of the Notes (there being no obligation of any direct or indirect parent holding company of Concentra to do so), and such parent holding company complies with the requirements outlined above, the reports, information and other documents required to be furnished to the Trustee, Cede & Co. and the Holders or filed with the SEC pursuant to this Section 4.03 may, at the option of Concentra, be those of such parent holding company rather than Concentra.

 

(d)           Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).

 

SECTION 4.04        Compliance Certificate.

 

(a)            The Issuer shall deliver to the Trustee, within 120 days after the end of each fiscal year of Concentra, an Officer’s Certificate stating that a review of the activities of Concentra and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Issuer has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to his or her knowledge the Issuer has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Issuer is taking or proposes to take with respect thereto).

 

(b)            So long as any of the Notes are outstanding, the Issuer shall deliver to the Trustee, within 30 days upon any Officer becoming aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default and what action the Issuer is taking or proposes to take with respect thereto.

 

SECTION 4.05          [Reserved].

 

SECTION 4.06           Stay, Extension and Usury Laws.

 

The Issuer and each of the Guarantors covenant (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.

 

 

SECTION 4.07           Restricted Payments.

 

(a)            Concentra shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:

 

(A)            declare or pay any dividend or make any other payment or distribution on account of Concentra’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Concentra or any of its Restricted Subsidiaries) or to the direct or indirect holders of Concentra’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of Concentra); provided that the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of a Restricted Subsidiary of Concentra shall not constitute a Restricted Payment;

 

(B)            purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving Concentra) any Equity Interests of Concentra or any other direct or indirect parent holding company of Concentra;

 

(C)            make any payment on or with respect to, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Issuer or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or among Concentra and any of its Restricted Subsidiaries), except (i) a payment of interest or principal at the Stated Maturity thereof or (ii) the purchase, repurchase, redemption, defeasance or other acquisition or retirement of any such subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or payment at final maturity, in each case within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement; or

 

(D)            make any Restricted Investment;

 

(all such payments and other actions set forth in these clauses (A) through (D) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:

 

(1)            no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;

 

(2)            the Issuer would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) of this Indenture; and

 

 

(3)           such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Concentra and its Restricted Subsidiaries since the Escrow Release Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (11), (12), (13), (14), (15) and (16) of Section 4.07(b)), is less than $100.0 million plus the sum, without duplication, of:

 

(A)           50% of the Consolidated Net Income of Concentra for the period (taken as one accounting period) from the first day of the fiscal quarter in which the Escrow Release Date occurs to the end of Concentra’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus

 

(B)           100% of the aggregate Qualified Proceeds received by Concentra since the Escrow Release Date as a contribution to its equity capital (other than Disqualified Stock) or from the issue or sale of Equity Interests of Concentra (other than Disqualified Stock and Excluded Contributions) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of Concentra that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of Concentra); plus

 

(C)           an amount equal to the net reduction in Investments by Concentra and its Restricted Subsidiaries resulting from (i) the sale or other disposition (other than to Concentra or a Restricted Subsidiary) of any Restricted Investment that was made after the Escrow Release Date and (ii) repurchases, redemptions and repayments of such Restricted Investments and the receipt of any dividends or distributions from such Restricted Investments; plus

 

(D)           to the extent that any Unrestricted Subsidiary of Concentra is redesignated as a Restricted Subsidiary after the Escrow Release Date, an amount equal to the Fair Market Value of Concentra’s interest in such Subsidiary immediately prior to such redesignation; plus

 

(E)            in the event Concentra and/or any Restricted Subsidiary of Concentra makes any Restricted Investment in a Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary of Concentra, an amount equal to the existing Investment of Concentra and/or any of its Restricted Subsidiaries in such Person that was previously treated as a Restricted Payment.

 

(b)           Section 4.07(a) shall not prohibit:

 

(1)            the payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Indenture;

 

(2)            the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of Concentra) of, Equity Interests of Concentra (other than Disqualified Stock) or from the substantially concurrent contribution of equity capital to Concentra (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment shall be excluded from clause (3)(B) of Section 4.07(a);

 

 

(3)            the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Issuer or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness, or from the substantially concurrent sale (other than to a Restricted Subsidiary of Concentra) of, Equity Interests of Concentra (other than Disqualified Stock) or from the substantially concurrent contribution of equity capital to Concentra (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (3)(B) of Section 4.07(a);

 

(4)            the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of Concentra or any Restricted Subsidiary of Concentra which Disqualified Stock was issued after the Escrow Release Date in accordance with Section 4.09;

 

(5)            the repurchase, redemption or other acquisition or retirement for value of Disqualified Stock of Concentra or any Restricted Subsidiary of Concentra made by exchange for, or out of the proceeds of the substantially concurrent sale of Replacement Preferred Stock that is permitted to be incurred pursuant to Section 4.09;

 

(6)            the payment of any dividend (or any similar distribution) by a Restricted Subsidiary of Concentra to the holders of its Equity Interests on a pro rata basis;

 

(7)            the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Concentra or any Restricted Subsidiary of Concentra held by any current or former officer, director, employee or consultant (or their estates or beneficiaries under their estates) of Concentra or any of its Restricted Subsidiaries, and any dividend payment or other distribution by Concentra or a Restricted Subsidiary to Concentra or any direct or indirect parent holding company of Concentra utilized for the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Concentra or such other direct or indirect parent holding company held by any current or former officer, director, employee or consultant (or their estates or beneficiaries under their estates) of Concentra or any of its Restricted Subsidiaries or Concentra or such other parent holding company, in each case, upon such Person’s death, disability, retirement or termination of employment; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $15.0 million in any fiscal year (it being understood, however, that unused amounts permitted to be paid pursuant to this proviso are available to be carried over to subsequent fiscal years subject to a maximum of $40.0 million in any fiscal year); provided further that such amount in any fiscal year may be increased by an amount not to exceed:

 

(A)            the cash proceeds from the sale of Equity Interests of Concentra and, to the extent contributed to Concentra as equity capital (other than Disqualified Stock), Equity Interests of Concentra or any direct or indirect parent holding company of Concentra, in each case to members of management, directors or consultants of Concentra, any of its Subsidiaries or any direct or indirect parent holding company of Concentra that occurs after the Escrow Release Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of clause (3)(B) of Section 4.07(a), and excluding Excluded Contributions, plus

 

(B)            the cash proceeds of key man life insurance policies received by Concentra and its Restricted Subsidiaries after the Escrow Release Date, less

 

 

(C)            the amount of any Restricted Payments previously made pursuant to clauses (A) and (B) of this clause (7);

 

(8)            the repurchase of Equity Interests deemed to occur upon the exercise of options, rights or warrants or upon vesting of common stock, in each case, to the extent such Equity Interests represent a portion of the exercise price of those options, rights, warrants or common stock;

 

(9)            the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Issuer or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee with any Excess Proceeds that remain after consummation of an Asset Sale Offer;

 

(10)            so long as no Default has occurred and is continuing or would be caused thereby, after the occurrence of a Change of Control and the completion of the offer to repurchase the Notes pursuant to Section 4.15 (including the purchase of the Notes tendered), any purchase or redemption of Indebtedness that is contractually subordinated to the Notes or to any Note Guarantee required pursuant to the terms thereof as a result of such Change of Control at a purchase or redemption price not to exceed 101% of the outstanding principal amount thereof, plus any accrued and unpaid interest;

 

(11)            cash payments in lieu of fractional shares issuable as dividends on common stock or preferred stock or upon the conversion of any convertible debt securities of Concentra or any of its Restricted Subsidiaries;

 

(12)            to the extent constituting Restricted Payments, any payments pursuant to the Separation Documents;

 

(13)            Investments that are made with Excluded Contributions;

 

(14)            distributions or payments of Receivables Fees;

 

(15)            to the extent constituting a Restricted Payment, any payment made in connection with the Transactions;

 

(16)            so long as no Event of Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount since the Escrow Release Date not to exceed the greater of $50.0 million and 12.5% of LTM Adjusted EBITDA at such time; and

 

(17)            additional Restricted Payments; provided that (x) no Event of Default has occurred and is continuing or would result therefrom and (y) on a pro forma basis, after giving effect to any such Restricted Payment pursuant to this clause (17), the Total Leverage Ratio of Concentra does not exceed 5.00 to 1.0.

 

(c)            The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by Concentra or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued by this Section 4.07 shall, if the fair market value thereof exceeds $20.0 million, be determined by the Board of Directors of Concentra, whose resolution with respect thereto shall be delivered to the Trustee.

 

 

For purposes of determining compliance with the provisions of this Section 4.07, in the event that a Restricted Payment meets the criteria of more than one of the types of Restricted Payments described in the above clauses, the Issuer, in its sole discretion, may order and classify, and from time to time may reorder and reclassify, such Restricted Payment, if it would have been permitted at the time such Restricted Payment was made and at the time of any such reclassification.

 

SECTION 4.08             Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.

 

(a)            Concentra shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

 

(1)            pay dividends or make any other distributions on its Capital Stock to Concentra or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Concentra or any of its Restricted Subsidiaries;

 

(2)            make loans or advances to Concentra or any of its Restricted Subsidiaries; or

 

(3)            sell, lease or transfer any of its properties or assets to Concentra or any of its Restricted Subsidiaries.

 

(b)            Section 4.08(a) shall not apply to encumbrances or restrictions existing under or by reason of:

 

(1)            agreements governing Existing Indebtedness and the Credit Agreement as in effect on the Escrow Release Date;

 

(2)            this Indenture, the Notes and the Note Guarantees;

 

(3)            applicable law, rule, regulation or order;

 

(4)            any instrument or agreement governing Indebtedness or Capital Stock of a Restricted Subsidiary acquired by Concentra or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or any of its Subsidiaries, or the property or assets of the Person or any of its Subsidiaries, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;

 

(5)            customary non-assignment provisions in contracts, leases, subleases, licenses and sublicenses entered into in the ordinary course of business;

 

(6)            customary restrictions in leases (including capital leases), security agreements or mortgages or other purchase money obligations for property acquired in the ordinary course of business that impose restrictions on the property purchased or leased of the nature described in clause (3) of Section 4.08(a);

 

 

(7)            any agreement for the sale or other disposition of all or substantially all the Capital Stock or the assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;

 

(8)            any instrument or agreement governing Permitted Refinancing Indebtedness; provided that the restrictions contained therein are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

 

(9)            Liens permitted to be incurred under Section 4.12 of this Indenture that limit the right of the debtor to dispose of the assets subject to such Liens;

 

(10)            provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements;

 

(11)            restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;

 

(12)            customary provisions imposed on the transfer of copyrighted or patented materials;

 

(13)            customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of Concentra or any Restricted Subsidiary;

 

(14)            Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction; provided that such restrictions apply only to such Receivables Subsidiary;

 

(15)            contracts entered into in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of Concentra or any Restricted Subsidiary of Concentra in any manner material to Concentra or any Restricted Subsidiary of Concentra;

 

(16)            restrictions on the transfer of property or assets required by any regulatory authority having jurisdiction over Concentra or any Restricted Subsidiary of Concentra or any of their businesses;

 

(17)            any instrument or agreement governing Indebtedness or preferred stock (i) of any Foreign Subsidiary, (ii) of Concentra or any Restricted Subsidiary that is incurred or issued subsequent to the Escrow Release Date and not in violation of Section 4.09; provided that (x) in the case of preferred stock and Indebtedness that is not secured by any Permitted Liens, such encumbrances and restrictions are not materially more restrictive in the aggregate than the restrictions contained in this Indenture and (y) in the case of Indebtedness secured by Permitted Liens, are not materially more restrictive in the aggregate than the restrictions contained in the Credit Agreement and (iii) of any Restricted Subsidiary; provided that in the case of this clause (iii), (x) the total amount of Indebtedness outstanding under any agreement entered into in reliance on this clause (iii) does not, at the time any such agreement is entered into, exceed 1% of Total Assets and (y) after giving effect to the incurrence of such Indebtedness or preferred stock, the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a);

 

 

(18)            any encumbrance or restriction imposed on any Subsidiary of Concentra that is of the type referred to in clause (3) of the definition of “Subsidiary” by (and for the benefit of) Concentra or a Restricted Subsidiary; and

 

(19)            any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the Indebtedness, preferred stock, Liens, agreements, contracts, licenses, leases, subleases, instruments or obligations referred to in clauses (1), (2), (4) through (15), (17) and (18) above; provided, however, that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are in the good faith judgment of Concentra’s Board of Directors, whose determination shall be conclusive, not materially more restrictive, taken as a whole, than those restrictions contained in the Indebtedness, preferred stock, Liens, agreements, contracts, licenses, leases, subleases, instruments or obligations referred to in clauses (1), (2), (4) through (15), (17) and (18) above, as applicable prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

 

SECTION 4.09               Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.

 

(a)            Concentra shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and Concentra shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Issuer and the Guarantors may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock or preferred stock, if the Fixed Charge Coverage Ratio of Concentra for Concentra’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.

 

(b)            Section 4.09(a) shall not prohibit the incurrence of any of the following items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred stock (collectively, “Permitted Debt”):

 

(1)            the incurrence by the Issuer and/or any Guarantor (and the Guarantee thereof by the Guarantors and the Non-Guarantor Subsidiaries) of Indebtedness under the Credit Agreement and other Credit Facilities entered into after the date of the Credit Agreement in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of Concentra and its Restricted Subsidiaries thereunder) not to exceed (except as permitted by the definition of “Permitted Refinancing Indebtedness”) the sum of (x) $1,250.0 million plus the greater of (i) $400.0 million and (ii) 100% of LTM Adjusted EBITDA and (y) any additional amount so long as, in the case of this subclause (y), after giving effect thereto (i) if such Indebtedness is secured by Liens on the assets of Concentra or any of its Restricted Subsidiaries, the Secured Leverage Ratio of Concentra would not exceed 6.0 to 1.0 and (ii) if Indebtedness is not secured by Liens on the assets of Concentra or any of its Restricted Subsidiaries, the Total Leverage Ratio of Concentra would not exceed 6.5 to 1.0;

 

 

(2)            the incurrence by Concentra and its Restricted Subsidiaries of the Existing Indebtedness;

 

(3)            the incurrence by the Issuer and the Guarantors of Indebtedness represented by the Notes to be issued on the Issue Date, replacement Notes in respect thereof, if any, and the related Note Guarantees;

 

(4)            the incurrence or issuance by Concentra or any of its Restricted Subsidiaries of Indebtedness (including Capital Lease Obligations), Disqualified Stock or preferred stock, in each case, incurred or issued for the purpose of financing all or any part of the purchase price or cost of design, construction, lease, installation or improvement of any fixed or capital assets and any Indebtedness assumed by Concentra or any of its Restricted Subsidiaries in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, in an aggregate principal amount, including all Permitted Refinancing Indebtedness (except as permitted by the definition of “Permitted Refinancing Indebtedness”) and Replacement Preferred Stock (except as permitted by the definition of “Replacement Preferred Stock”) incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4), not to exceed the greater of $87.5 million and 25% of LTM Adjusted EBITDA at such time;

 

(5)            the incurrence by Concentra or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness or Replacement Preferred Stock in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) or any Disqualified Stock or preferred stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clauses (2), (3), (4), (5), (13), (15), (17) or (18) of this Section 4.09(b);

 

(6)            the incurrence by Concentra or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Concentra and any of its Restricted Subsidiaries; provided, however, that:

 

(A)            if the Issuer or any Guarantor is the obligor on such Indebtedness and the payee is not the Issuer or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Issuer or the Note Guarantee, in the case of a Guarantor, except to the extent such subordination would violate any applicable law, rule or regulation; and

 

(B)            (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Concentra or a Restricted Subsidiary of Concentra and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Concentra or a Restricted Subsidiary of Concentra, shall be deemed, in each case, to constitute a new incurrence of such Indebtedness by Concentra or such Restricted Subsidiary, as the case may be, which new incurrence is not permitted by this clause (6);

 

(7)            the issuance by any of Concentra’s Restricted Subsidiaries to Concentra or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:

 

(A)            any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than Concentra or a Restricted Subsidiary of Concentra; and

 

 

(B)            any sale or other transfer of any such preferred stock to a Person that is not either Concentra or a Restricted Subsidiary of Concentra,

 

will be deemed, in each case, to constitute a new issuance of such preferred stock by such Restricted Subsidiary which new issuance is not permitted by this clause (7);

 

(8)            the incurrence by Concentra or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business;

 

(9)            the Guarantee:

 

(A)            by the Issuer or any of the Guarantors of Indebtedness of Concentra or a Restricted Subsidiary of Concentra that was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to the Notes, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed; and

 

(B)            by any Non-Guarantor Subsidiary of Indebtedness of a Non-Guarantor Subsidiary;

 

(10)            the incurrence by Concentra or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, letters of credit, performance bonds, surety bonds, appeal bonds or other similar bonds in the ordinary course of business; provided, however, that upon the drawing of letters of credit for reimbursement obligations, including with respect to workers’ compensation claims, or the incurrence of other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence;

 

(11)            the incurrence by Concentra or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is extinguished within five Business Days;

 

(12)            the incurrence of Indebtedness arising from agreements of Concentra or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, holdback, contingency payment obligations or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of Concentra or any Restricted Subsidiary;

 

(13)            the incurrence of Indebtedness or the issuance of any Disqualified Stock or preferred stock by any Non-Guarantor Subsidiary and any Foreign Subsidiary of Concentra, collectively, in an amount not to exceed $87.5 million at any time outstanding;

 

(14)            the incurrence of Indebtedness resulting from endorsements of negotiable instruments for collection in the ordinary course of business;

 

(15)            Indebtedness, Disqualified Stock or preferred stock of Persons that are acquired by Concentra or any Restricted Subsidiary (including by way of merger or consolidation) in accordance with the terms of this Indenture; provided that such Indebtedness, Disqualified Stock or preferred stock is not incurred in contemplation of such acquisition, merger or consolidation; and provided further that after giving effect to such acquisition, merger or consolidation, either

 

 

(A)            the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or

 

(B)            Concentra’s Fixed Charge Coverage Ratio after giving pro forma effect to such acquisition, merger or consolidation would be greater than Concentra’s actual Fixed Charge Coverage Ratio immediately prior to such acquisition, merger or consolidation;

 

(16)            Indebtedness of Concentra or a Restricted Subsidiary in respect of netting services, overdraft protection and otherwise in connection with deposit accounts; provided that such Indebtedness remains outstanding for ten Business Days or less;

 

(17)            the incurrence by a Receivables Subsidiary of Indebtedness in a Qualified Receivables Transaction;

 

(18)            the incurrence or issuance by Concentra or any of its Restricted Subsidiaries of additional Indebtedness, Disqualified Stock or preferred stock in an aggregate principal amount (or accreted value or liquidation preference, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness (except as permitted by the definition of “Permitted Refinancing Indebtedness”) and all Replacement Preferred Stock (except as permitted by the definition of “Replacement Preferred Stock”) incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness, Disqualified Stock and preferred stock incurred or issued pursuant to this clause (18), not to exceed the greater of $300.0 million and 75% of LTM Adjusted EBITDA at such time;

 

(19)            the incurrence by Concentra or any of its Restricted Subsidiaries of Indebtedness in the form of loans from a Captive Insurance Subsidiary;

 

(20)            Indebtedness representing deferred compensation to employees of Concentra and its Restricted Subsidiaries incurred in the ordinary course of business;

 

(21)            Indebtedness in respect of promissory notes issued to physicians, consultants, employees or directors or former employees, consultants or directors in connection with repurchases of Equity Interests permitted by Section 4.07(b)(7);

 

(22)            Indebtedness owing to Select or its subsidiaries incurred in connection with the Transactions.

 

For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness (or any portion thereof) at any time, whether at the time of incurrence or upon the application of all or a portion of the proceeds thereof or subsequently meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (21) above, or is entitled to be incurred pursuant to Section 4.09(a), the Issuer shall be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09 except that Indebtedness under the Credit Agreement incurred or outstanding on the Escrow Release Date will be deemed to have been incurred in reliance on the exception provided by clause (1) of this Section 4.09(b). The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock or preferred stock in the form of additional shares of the same class of Disqualified Stock or preferred stock shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred stock for purposes of this Section 4.09; provided in each such case, that the amount thereof is included in Fixed Charges of Concentra as accrued (other than the reclassification of preferred stock as Indebtedness due to a change in accounting principles).

 

 

For purposes of determining compliance with any dollar-denominated restriction on the incurrence of Indebtedness, the dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, plus the aggregate amount of fees, underwriting discounts, premiums (including tender premiums) and other costs and expenses (including original issue discount) incurred in connection with such refinancing.

 

The amount of any Indebtedness outstanding as of any date will be:

 

(1)            the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

 

(2)            the principal amount of the Indebtedness, in the case of any other Indebtedness; and

 

(3)            in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

 

(A)            the Fair Market Value of such assets at the date of determination; and

 

(B)            the amount of the Indebtedness of the other Person.

 

SECTION 4.10              Asset Sales.

 

(a)            Concentra shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

 

(1)            the Issuer (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and

 

(2)            at least 75% of the consideration received in the Asset Sale by Concentra or such Restricted Subsidiary is in the form of cash. For purposes of this paragraph (2), each of the following shall be deemed to be cash:

 

(A)            Cash Equivalents;

 

 

(B)            any liabilities, as shown on Concentra’s most recent consolidated balance sheet, of Concentra or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases Concentra or such Restricted Subsidiary from further liability;

 

(C)            any securities, notes or other obligations received by Concentra or any such Restricted Subsidiary from such transferee that are converted by Concentra or such Restricted Subsidiary into cash within 180 days of receipt, to the extent of the cash received in that conversion;

 

(D)            any Designated Noncash Consideration the Fair Market Value of which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (d) (and not subsequently converted into Cash Equivalents that are treated as Net Proceeds of an Asset Sale), does not exceed $50.0 million since the Escrow Release Date, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; and

 

(E)            any stock or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).

 

Notwithstanding the foregoing, the 75% limitation referred to in clause (2) above shall not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing provision, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.

 

(b)            Within 365 days after the receipt of any Net Proceeds from an Asset Sale, Concentra (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option:

 

(1)            to repay Indebtedness outstanding pursuant to Section 4.09(b)(1) and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;

 

(2)            to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of Concentra;

 

(3)            to make a capital expenditure with respect to a Permitted Business;

 

(4)            to acquire Additional Assets; or

 

(5)            to repay (i) Notes or (ii) any other Indebtedness (other than Indebtedness owing to Concentra or a Restricted Subsidiary) that is pari passu in right of payment with the Notes, and in the case of revolving Indebtedness, to correspondingly reduce commitments with respect thereto; provided that if Concentra or any of its Restricted Subsidiaries shall so repay any Indebtedness other than the Notes, the Issuer will repay the Notes on a pro rata basis by, at its option, (A) redeeming Notes pursuant to Section 3.07 or (B) purchasing Notes through open-market purchases, at a price equal to or higher than 100% of the principal amount thereof, or making an offer (in accordance with the procedures set forth below) to all Holders to purchase their Notes on a ratable basis with such other Indebtedness for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased;

 

 

provided that the requirements of clauses (2) through (4) above shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditures referred to in any of clauses (2) through (4) above is entered into by Concentra or its Restricted Subsidiary within 365 days after the receipt of such Net Proceeds and such Net Proceeds are applied in accordance with such agreement.

 

Pending the final application of any Net Proceeds, the Issuer may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.

 

(c)            Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $60.0 million, within ten Business Days thereof, the Issuer shall make an Asset Sale Offer to all Holders and if the Issuer elects (or is required by the terms of such other pari passu Indebtedness), any holders of other Indebtedness that is pari passu in right of payment with the Notes. The offer price in any Asset Sale Offer shall be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.

 

(d)            The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.

 

SECTION 4.11              Transactions with Affiliates.

 

(a)            Concentra shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of Concentra involving aggregate consideration in excess of $5.0 million for any individual transaction or series of related transactions (each, an “Affiliate Transaction”), unless:

 

(1)            the Affiliate Transaction is on terms that, taken as a whole, are not materially less favorable to Concentra or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by Concentra or such Restricted Subsidiary with an unrelated Person; and

 

(2)            with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20.0 million, the Issuer delivers to the Trustee an Officer’s Certificate certifying that such Affiliate Transaction complies with this Section 4.11(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of Concentra, together with a certified copy of the resolutions of the Board of Directors of Concentra approving such Affiliate Transaction or Affiliate Transactions.

 

 

(b)            The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of Section 4.11(a):

 

(1)            any employment agreement, change of control agreement, severance agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into by Concentra or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;

 

(2)            transactions between or among Concentra, its Restricted Subsidiaries and/or any entity that becomes a Restricted Subsidiary as a result of such transaction;

 

(3)            transactions with a Person (other than an Unrestricted Subsidiary of Concentra) that is an Affiliate of Concentra solely because Concentra owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;

 

(4)            payment of reasonable directors’ fees;

 

(5)            any issuance of Equity Interests (other than Disqualified Stock) of Concentra to Affiliates of Concentra;

 

(6)            Permitted Investments or Restricted Payments that do not violate Section 4.07;

 

(7)            [Reserved.];

 

(8)            [Reserved.];

 

(9)            loans (or cancellation of loans) or advances to employees in the ordinary course of business;

 

(10)            transactions with customers, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, in each case which are in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture;

 

(11)            any Qualified Receivables Transaction;

 

(12)            [Reserved.];

 

(13)            [Reserved.];

 

(14)            the issuance of Equity Interests (other than Disqualified Stock) in Concentra or any Restricted Subsidiary for compensation purposes;

 

(15)            any lease entered into between Concentra or any Restricted Subsidiary, as lessee and any Affiliate of Concentra, as lessor, which is approved by a majority of the disinterested members of the Board of Directors of Concentra in good faith;

 

 

(16)            intellectual property licenses in the ordinary course of business;

 

(17)            Existing Indebtedness and any other obligations pursuant to an agreement existing on the Escrow Release Date and described in the Offering Memorandum (including the Separation Documents), including any amendment thereto (so long as such amendment is not disadvantageous to the Holders in any material respect);

 

(18)            payments by Concentra or any of its Restricted Subsidiaries of reasonable insurance premiums to, and any borrowings or dividends received from, any Captive Insurance Subsidiary;

 

(19)            transactions in which Concentra or any Restricted Subsidiary delivers to the Trustee a letter from an accounting, appraisal or investment banking firm of national standing stating that such transaction is fair to Concentra or such Restricted Subsidiary from a financial point of view and which are approved by a majority of the disinterested members of the Board of Directors of Concentra in good faith;

 

(20)            [Reserved.]; and

 

(21)            any customary management services agreements or similar agreements between Concentra or any of its Subsidiaries and any Consolidated Practice or joint venture.

 

SECTION 4.12                Liens.

 

Concentra shall not, and shall not permit any of its Restricted Subsidiaries to create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than Permitted Liens) securing Indebtedness upon any of their property or assets, now owned or hereafter acquired, unless all payments due under this Indenture and the Notes are secured on an equal and ratable basis with the obligations so secured until such time as such obligations are no longer secured by a Lien.

 

SECTION 4.13                [Reserved].

 

SECTION 4.14                Corporate Existence.

 

Subject to Article 5, Concentra shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence in accordance with its organizational documents (as the same may be amended from time to time).

 

SECTION 4.15                Offer To Repurchase Upon Change of Control.

 

(a)            If a Change of Control occurs, each Holder shall have the right to require the Issuer to make an offer (a “Change of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date (the “Change of Control Payment”). Within 30 days following any Change of Control, the Issuer shall mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and stating:

 

(1)            that the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered shall be accepted for payment;

 

 

(2)            the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);

 

(3)            that any Note not tendered shall continue to accrue interest;

 

(4)            that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;

 

(5)            that Holders electing to have any Notes purchased pursuant to a Change of Control Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;

 

(6)            that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased;

 

(7)            that Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof; and

 

(8)            that Holders electing to have a Note purchased pursuant to a Change of Control Offer may elect to have Notes purchased in denominations of $2,000 and integral multiples of $1,000 in excess thereof only.

 

The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Sections 3.09 or 4.15 of this Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.15 by virtue of such compliance.

 

(b)            On the Change of Control Payment Date, the Issuer shall, to the extent lawful:

 

(1)            accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;

 

(2)            deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and

 

(3)            deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer.

 

 

The Paying Agent shall promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

 

(c)            Notwithstanding anything to the contrary in this Section 4.15, the Issuer shall not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 and purchases all Notes validly tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption has been given in respect of all Notes pursuant to Section 3.07 of this Indenture, unless and until there is a Default in payment of the applicable redemption price. A Change of Control Offer may be made in advance of, and conditioned upon the occurrence of, a Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.

 

(d)            Notwithstanding anything to the contrary in this Section 4.15, in no event will the consummation of the Escrow Merger, the Transactions or the Distribution constitute a Change of Control.

 

SECTION 4.16             Designation of Restricted and Unrestricted Subsidiaries.

 

The Board of Directors of Concentra may designate any Restricted Subsidiary (other than the Issuer or a direct or indirect parent company of the Issuer) to be an Unrestricted Subsidiary if no Default would be in existence following such designation. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by Concentra and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary shall be deemed to be an Investment made as of the time of the designation and shall reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by the Issuer. That designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.

 

The Board of Directors of Concentra may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of Concentra; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Concentra of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation shall only be permitted if such Indebtedness is permitted under Section 4.09 and no Default or Event of Default would be in existence following such designation.

 

SECTION 4.17             [Reserved].

 

SECTION 4.18             Additional Note Guarantees.

 

If Concentra or any of its Restricted Subsidiaries acquires or creates another Subsidiary, other than a Non-Guarantor Subsidiary or if any Non-Guarantor Subsidiary otherwise ceases to be a Non-Guarantor Subsidiary, in each case, after the Escrow Release Date then such Subsidiary shall become a Guarantor and execute a supplemental indenture substantially in the form attached hereto as Exhibit E2 and deliver an Opinion of Counsel to the Trustee within 30 Business Days of the date on which it was acquired or created or ceased to be a Non-Guarantor Subsidiary, as applicable.

 

 

SECTION 4.19             Activities Prior to Escrow Release.

 

Prior to the Escrow Merger, the Escrow Issuer will be a wholly owned subsidiary of CHSI and its primary activities will be restricted to issuing the Notes, performing its obligations in respect of the Notes under this Indenture and the Escrow Agreement, instructing the Escrow Agent with respect to the investment of the Escrowed Funds in specified cash and Cash Equivalents in accordance with the terms of the Escrow Agreement, consummating the Assumption, redeeming the Notes pursuant to Section 3.10 on the Special Mandatory Redemption Date, if applicable, and conducting such other activities as are necessary or appropriate to carry out the activities described above. The Escrow Issuer will not own, hold or otherwise have any interest in any assets other than the Escrowed Funds and the Escrow Account. Prior to the Assumption, the Escrow Issuer will not engage in any business operations or other activities other than those contemplated in this Section 4.19.

 

ARTICLE 5.

 

SUCCESSORS

 

SECTION 5.01             Merger, Consolidation, or Sale of Assets.

 

(a)            From and after the Escrow Merger and the Assumption, neither Concentra nor the Issuer shall, directly or indirectly: (I) consolidate or merge with or into another Person or consummate a Division as the Dividing Person (whether or not the Issuer or Concentra is the surviving Person); or (II) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of Concentra and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:

 

(1)            either:

 

(A)            the Issuer or Concentra is the surviving entity; or

 

(B)            the Person formed by or surviving any such consolidation, merger or Division (if other than the Issuer) or to which such sale, assignment, transfer, conveyance or other disposition has been made is an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia;

 

(2)            the Person formed by or surviving any such consolidation, merger or Division (if other than the Issuer) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Issuer under the Notes and this Indenture pursuant to agreements reasonably satisfactory to the Trustee; provided, however, that at all times, a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia must be a co-issuer or the issuer of the Notes if such surviving Person is not a corporation;

 

(3)            immediately after such transaction, no Default or Event of Default exists; and

 

(4)            the Issuer, Concentra or the Person formed by or surviving any such consolidation, merger or Division (if other than the Issuer or Concentra, as applicable), or to which such sale, assignment, transfer, conveyance or other disposition has been made, as applicable, would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period:

 

 

(A)            be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) or

 

(B)            have a Fixed Charge Coverage Ratio that is greater than the actual Fixed Charge Coverage Ratio of Concentra immediately prior to such transaction.

 

In addition, neither the Issuer nor Concentra shall, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person.

 

(b)            Clauses (3) and (4) of Section 5.01(a) shall not apply to:

 

(1)            a merger of the Issuer or Concentra, as applicable, with an Affiliate solely for the purpose of reincorporating the Issuer or Concentra, as applicable, in another jurisdiction;

 

(2)            any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Issuer and Concentra or any of its Restricted Subsidiaries or, so long as the Issuer or Concentra, as applicable, is a surviving Person and any other surviving Person is a Restricted Subsidiary of Concentra, any Division of the Issuer or Concentra, as applicable, as the Dividing Person; and

 

(3)            transfers of accounts receivable and related assets of the type specified in the definition of Qualified Receivables Transaction (or a fractional undivided interest therein) by a Receivables Subsidiary in a Qualified Receivables Transaction.

 

For the avoidance of doubt, this Section 5.01 shall not prohibit, restrict or limit the Escrow Issuer’s ability to consummate the Escrow Merger.

 

SECTION 5.02             Successor Corporation Substituted.

 

Upon any consolidation, merger or Division, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Issuer in a transaction that is subject to, and that complies with the provisions of, Section 5.01, the successor Person formed by such consolidation or Division or into or with which the Issuer is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, Division, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Issuer” shall refer instead to the successor Person and not to the Issuer), and may exercise every right and power of the Issuer under this Indenture with the same effect as if such successor Person had been named as the Issuer herein, and when a successor Person assumes all obligations of its predecessor under this Indenture or the Notes, the predecessor shall be released from those obligations; provided, however, that in the case of a transfer by lease, the predecessor shall not be released from those obligations.

 

 

ARTICLE 6.

 

DEFAULTS AND REMEDIES

 

SECTION 6.01             Events of Default.

 

Each of the following is an event of default (an “Event of Default”):

 

(1)            default for 30 days in the payment when due of interest on the Notes, whether or not prohibited by the subordination provisions of this Indenture;

 

(2)            default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes, whether or not prohibited by the subordination provisions of this Indenture;

 

(3)            failure by Concentra or any of its Restricted Subsidiaries to comply with the provisions of Section 5.01 hereof;

 

(4)            failure by Concentra or any of its Restricted Subsidiaries for 60 days after notice to the Issuer by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any of the other agreements in this Indenture;

 

(5)            default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by Concentra or any of its Significant Subsidiaries (or the payment of which is guaranteed by Concentra or any of its Significant Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the Escrow Release Date, if that default:

 

(A)            is caused by a failure to pay principal at the final Stated Maturity of such Indebtedness (a “Payment Default”); or

 

(B)            results in the acceleration of such Indebtedness prior to its express maturity;

 

and, in each case, the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $75.0 million or more;

 

(6)            with respect to any judgment or decree for the payment of money (net of any amount covered by insurance issued by a reputable and creditworthy insurer that has not contested coverage or reserved rights with respect to an underlying claim) in excess of $75.0 million or its foreign currency equivalent against Concentra or any Significant Subsidiary of Concentra, the failure by Concentra or such Significant Subsidiary, as applicable, to pay such judgment or decree, which judgment or decree has remained outstanding for a period of 60 days after such judgment or decree became final and nonappealable without being paid, discharged, waived or stayed;

 

 

(7)            except as permitted by this Indenture, any Note Guarantee of any Significant Subsidiary is declared to be unenforceable or invalid by any final and nonappealable judgment or decree or ceases for any reason to be in full force and effect, or any Guarantor that is a Significant Subsidiary or any Person acting on behalf of any Guarantor that is a Significant Subsidiary denies or disaffirms its obligations in writing under its Note Guarantee and such Default continues for 10 days after notice thereof is delivered to the Issuer by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class;

 

(8)            Concentra or any of the Restricted Subsidiaries that is a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law:

 

(A)            commences a voluntary case,

 

(B)            consents to the entry of an order for relief against it in an involuntary case,

 

(C)            consents to the appointment of a custodian of it or for all or substantially all of its property,

 

(D)            makes a general assignment for the benefit of its creditors, or

 

(E)            generally is not paying its debts as they become due;

 

(9)            a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

 

(A)            is for relief against Concentra or any of Concentra’s Restricted Subsidiaries that is a Significant Subsidiary in an involuntary case;

 

(B)            appoints a custodian of Concentra or any of Concentra’s Restricted Subsidiaries that is a Significant Subsidiary for all or substantially all of the property of Concentra or any of Concentra’s Restricted Subsidiaries that is a Significant Subsidiary; or

 

(C)            orders the liquidation of Concentra or any of Concentra’s Restricted Subsidiaries that is a Significant Subsidiary;

 

and the order or decree remains unstayed and in effect for 60 consecutive days; and

 

(10)            the failure by the Escrow Issuer to pay or cause to be paid the Special Mandatory Redemption Price on the Special Mandatory Redemption Date, if any, as described in Section 3.10.

 

SECTION 6.02             Acceleration.

 

In the case of an Event of Default arising under clauses (8) or (9) of Section 6.01, all outstanding Notes shall become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately.

 

Upon any such declaration, the Notes shall become due and payable immediately. The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, rescind an acceleration or waive any existing Default or Event of Default and its consequences under this Indenture except a continuing Default or Event of Default in the payment of interest or premium, if any, on, or the principal of, the Notes.

 

 

SECTION 6.03             Other Remedies.

 

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

 

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

 

SECTION 6.04             Waiver of Past Defaults.

 

Holders of a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on, the Notes (including in connection with an offer to purchase); provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. In case of any such waiver, the Issuer, the Trustee and the Holders shall be restored to their former positions and rights hereunder and under the Notes, respectively.

 

SECTION 6.05             Control by Majority.

 

Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders or that may involve the Trustee in personal liability. Prior to taking any action under this Indenture, the Trustee shall be entitled to reasonable indemnification against all losses and expenses caused by taking or not taking such action.

 

SECTION 6.06             Limitation on Suits.

 

A Holder may pursue a remedy with respect to this Indenture or the Notes only if:

 

(1)            such Holder has previously given the Trustee notice that an Event of Default is continuing;

 

(2)            Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy;

 

(3)            such Holders have offered the Trustee reasonable security or indemnity reasonably satisfactory to it against any loss, liability or expense;

 

(4)            the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and

 

 

(5)            Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.

 

SECTION 6.07             Rights of Holders To Receive Payment.

 

Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

 

SECTION 6.08             Collection Suit by Trustee.

 

If an Event of Default specified in clauses (1) or (2) of Section 6.01 or occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer and each Guarantor for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

SECTION 6.09             Trustee May File Proofs of Claim.

 

The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. The Trustee may participate as a member of any official committee of creditors appointed in the matters as it deems necessary or advisable.

 

SECTION 6.10             Priorities.

 

If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:

 

First: to the Trustee, its agents and attorneys for amounts due under Section 7.07, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and

 

 

Third: to the Issuer or to such party as a court of competent jurisdiction shall direct.

 

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.

 

SECTION 6.11             Undertaking for Costs.

 

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.

 

ARTICLE 7.

 

TRUSTEE

 

SECTION 7.01             Duties of Trustee.

 

(a)            If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

 

(b)            Except during the continuance of an Event of Default:

 

(1)            the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2)            in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of certificates or opinions specifically required by any provision hereof to be furnished to it, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

 

(c)            The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(1)            this paragraph does not limit the effect of paragraph of this Section 7.01;

 

(2)            the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

 

(3)            the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

 

(d)            Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a) and (b) of this Section 7.01.

 

(e)            No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

(f)            The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

 

(g)            In the absence of bad faith, negligence or willful misconduct on the part of the Trustee, the Trustee shall not be responsible for the application of any money by any Paying Agent other than the Trustee.

 

SECTION 7.02             Rights of Trustee.

 

(a)            The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.

 

(b)            Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its own selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

(c)            The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.

 

(d)            The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture provided, however, that the Trustee’s conduct does not constitute willful misconduct, bad faith or negligence.

 

(e)            Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.

 

(f)            The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.

 

(g)            The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture.

 

 

(h)            The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.

 

(i)            The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.

 

(j)            The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate (including any Officer’s Certificate), statement, instrument, opinion (including any Opinion of Counsel), notice, request, direction, consent, order, bond, debenture, or other paper or document.

 

(k)            The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

 

(l)            The permissive rights of the trustee to do things enumerated in this Indenture shall not be construed as duties.

 

SECTION 7.03             Individual Rights of Trustee.

 

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Section 7.10 hereof.

 

SECTION 7.04             Trustee’s Disclaimer.

 

The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

 

SECTION 7.05             Notice of Defaults.

 

If a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to Holders a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders.

 

 

SECTION 7.06             Reserved.

 

SECTION 7.07             Compensation and Indemnity.

 

(a)            The Issuer shall pay to the Trustee from time to time reasonable compensation as agreed to between the Issuer and the Trustee for its acceptance of this Indenture and services hereunder. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 

(b)            The Issuer shall indemnify the Trustee against any and all losses, liabilities, claims, damages or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Issuer and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Issuer, the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense shall be determined to have been caused by its own negligence or willful misconduct. The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel; provided that the Issuer shall not be required to pay such fees and expenses if it assumes the Trustee’s defense, and, in the Trustee’s reasonable judgment, there is no conflict of interest between the Issuer and the Trustee in connection with such defense. The Issuer shall not be required to pay for any settlement made without its consent, which consent shall not be unreasonably withheld.

 

(c)            The obligations of the Issuer under this Section 7.07 shall survive the satisfaction and discharge of this Indenture.

 

(d)            To secure the Issuer’s payment obligations in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.

 

(e)            When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(8) or (9) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

 

SECTION 7.08             Replacement of Trustee.

 

(a)            A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.

 

(b)            The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:

 

 

(1)            the Trustee fails to comply with Section 7.10 hereof;

 

(2)            the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

(3)            a custodian or public officer takes charge of the Trustee or its property; or

 

(4)            the Trustee becomes incapable of acting.

 

(c)            If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.

 

(d)            If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the Holders of at least 10% in principal amount of the then outstanding Notes may petition, at the expense of the Issuer, any court of competent jurisdiction for the appointment of a successor Trustee.

 

(e)            If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

(f)            A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to the Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.

 

SECTION 7.09             Successor Trustee by Merger, etc.

 

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.

 

SECTION 7.10             Eligibility; Disqualification.

 

There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that together with its affiliates has a combined capital and surplus of at least $100.0 million as set forth in its most recent published annual report of condition.

 

 

ARTICLE 8.

 

LEGAL DEFEASANCE AND COVENANT DEFEASANCE

 

SECTION 8.01             Option To Effect Legal Defeasance or Covenant Defeasance.

 

The Issuer may, at any time, elect to have either Section 8.02 or 8.03 be applied to all outstanding Notes and all obligations of the Guarantors with respect to the Note Guarantees upon compliance with the conditions set forth below in this Article 8.

 

SECTION 8.02             Legal Defeasance and Discharge.

 

Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer and each of the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth in Section 8.04 are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer and the Guarantors shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:

 

(1)            the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest or premium, if any, on such Notes when such payments are due from the trust referred to in Section 8.04 hereof;

 

(2)            the Issuer’s obligations with respect to such Notes under Sections 2.05, 2.06, 2.07, 2.08 and 4.02 hereof;

 

(3)            the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuer’s and the Guarantors’ obligations in connection therewith; and

 

(4)            this Article 8.

 

Subject to compliance with this Section 8.02, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

 

SECTION 8.03             Covenant Defeasance.

 

Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from each of their obligations under Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.15, 4.16, 4.17 and 4.18 and Section 5.01(a) with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and the Note Guarantees, the Issuer and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture and such Notes and Note Guarantees shall be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03 subject to the satisfaction of the conditions set forth in Section 8.04, Sections 6.01(4) through 6.01(7) and, to the extent relating to a Significant Subsidiary, 6.01(8) and 6.01(9) shall not constitute Events of Default.

 

 

SECTION 8.04             Conditions to Legal or Covenant Defeasance.

 

In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:

 

(1)            the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as shall be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, or interest and premium, if any, on, the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Issuer must specify whether the Notes are being defeased to such stated date for payment or to a particular redemption date;

 

(2)            in the case of Legal Defeasance, the Issuer must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (b) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

 

(3)            in the case of Covenant Defeasance, the Issuer must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

 

(4)            such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement (including, without limitation, the Credit Agreement) or instrument (other than this Indenture) to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound;

 

(5)            the Issuer must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over the other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or others; and

 

 

(6)            the Issuer must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

 

SECTION 8.05             Deposited Money and Government Securities To Be Held in Trust; Other Miscellaneous Provisions.

 

Subject to Section 8.06, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.

 

The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

 

Notwithstanding anything in this Article 8 to the contrary, the Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money or non-callable Government Securities held by it as provided in Section 8.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04 hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

 

SECTION 8.06             Repayment to Issuer.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter be permitted to look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Issuer.

 

SECTION 8.07             Reinstatement.

 

If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03, as the case may be; provided, however, that, if the Issuer makes any payment of principal of, premium, if any, or interest on any Note following the reinstatement of their obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the cash or Government Securities held by the Trustee or Paying Agent.

 

 

ARTICLE 9.

 

AMENDMENT, SUPPLEMENT AND WAIVER

 

SECTION 9.01             Without Consent of Holders.

 

(a)            Notwithstanding Section 9.02 of this Indenture, the Issuer and the Trustee may amend or supplement this Indenture, the Note Guarantees or the Notes without the consent of any Holder of a Note:

 

(1)            to cure any ambiguity, defect or inconsistency;

 

(2)            to provide for uncertificated Notes in addition to or in place of certificated Notes;

 

(3)            to provide for the assumption of the Issuer’s or a Guarantor’s obligations to the Holders and Note Guarantees by a successor to the Issuer pursuant to Article 5 or Section 10.04, respectively, hereof;

 

(4)            to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights hereunder of any Holder;

 

(5)            to conform the text of this Indenture, the Note Guarantees or the Notes to any provision of the “Description of the notes” section of the Offering Memorandum to the extent that such provision in that “Description of the notes” section was intended to be a verbatim recitation of a provision of this Indenture, the Note Guarantees or the Notes;

 

(6)            to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture as of the Issue Date;

 

(7)            to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the Notes, or to secure the Notes; or

 

(8)            to issue the Notes.

 

(b)            Upon the request of the Issuer accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02, the Trustee shall join with the Issuer in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.

 

SECTION 9.02             With Consent of Holders.

 

(a)            Except as provided below in this Section 9.02, the Issuer and the Trustee may amend or supplement this Indenture (including, without limitation, Section 3.09, 4.10 and 4.15 hereof), the Note Guarantees and the Notes with the consent of the Holders of at least a majority in aggregate principal amount of the Notes (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Note Guarantees or the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes).

 

 

(b)            Upon the request of the Issuer accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02, the Trustee shall join with the Issuer in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.

 

(c)            It is not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it is sufficient if such consent approves the substance thereof.

 

(d)            After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall mail to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Sections 6.04 and 6.07, the Holders of a majority in aggregate principal amount of the Notes then outstanding, voting as a single class, may waive compliance in a particular instance by the Issuer and the Guarantors with any provision of this Indenture, the Notes, or the Note Guarantees. However, without the consent of each Holder affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):

 

(1)            reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

 

(2)            reduce the principal of or change the fixed maturity of any Note or alter the provisions with respect to the optional redemption of the Notes contained in Section 5 of the Notes (except the notice period contained therein or in Sections 3.01, 3.02 and 3.03);

 

(3)            reduce the rate of or change the time for payment of interest, including default interest, on any Note;

 

(4)            waive a Default or Event of Default in the payment of principal of, or interest or premium, if any, on, the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment default that resulted from such acceleration);

 

(5)            make any Note payable in money other than that stated in the Notes;

 

 

(6)            make any change in the provisions of this Indenture relating to waivers of past Defaults or the contractual rights of Holders to receive payments of principal of, or interest or premium, if any, on, the Notes;

 

(7)            make any change in the preceding amendment and waiver provisions;

 

(8)            [Reserved.]; or

 

(9)            make any material change in the provisions of the Indenture or the Escrow Agreement described under Section 3.10.

 

SECTION 9.03             [Reserved].

 

SECTION 9.04             Revocation and Effect of Consents.

 

Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

 

SECTION 9.05             Notation on or Exchange of Notes.

 

The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.

 

Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.

 

SECTION 9.06             Trustee To Sign Amendments, etc.

 

The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Issuer may not sign an amended or supplemental indenture until the Board of Directors approves it. In executing any amended or supplemental indenture, the Trustee shall be provided with and (subject to Section 7.01 hereof) shall be fully protected in relying upon, in addition to the documents required by Section 12.03, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture.

 

 

ARTICLE 10.

 

NOTE GUARANTEES

 

SECTION 10.01             Guarantee.

 

(a)            Subject to this Article 10, from and after the Assumption and upon execution and delivery of the Assumption Date Supplemental Indenture, each of the Guarantors shall, jointly and severally, unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:

 

(1)            the principal of, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other Obligations of the Issuer to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

 

(2)            in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.

 

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

 

(b)            From and after the Assumption and upon execution and delivery of the Assumption Date Supplemental Indenture, each of the Guarantors shall agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. From and after the Assumption and upon execution and delivery of the Assumption Date Supplemental Indenture, each Guarantor shall waive diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenant that this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture or by release in accordance with the provisions of this Indenture.

 

(c)            If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid by the Issuer or the Guarantors to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

 

(d)            From and after the Assumption and upon execution and delivery of the Assumption Date Supplemental Indenture, each Guarantor shall agree that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. From and after the Assumption and upon execution and delivery of the Assumption Date Supplemental Indenture, each Guarantor shall further agree that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and in the event of any declaration of acceleration of such Obligations as provided in Article 6, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. From and after the Assumption and upon execution and delivery of the Assumption Date Supplemental Indenture, the Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.

 

 

SECTION 10.02             Limitation on Guarantor Liability.

 

From and after the Assumption and upon execution and delivery of the Assumption Date Supplemental Indenture, each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors, from and after the Assumption and upon execution and delivery of the Assumption Date Supplemental Indenture, shall irrevocably agree that the obligations of such Guarantor shall be limited to the maximum amount that shall, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.

 

SECTION 10.03             Execution and Delivery of Note Guarantee.

 

To evidence its Note Guarantee set forth in Section 10.01, each Guarantor shall agree that a notation of such Note Guarantee substantially in the form attached hereto as Exhibit D shall be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by one of its Officers.

 

From and after the Assumption and upon execution and delivery of the Assumption Date Supplemental Indenture, each Guarantor shall agree that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.

 

If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid nevertheless.

 

The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.

 

In the event that Concentra or any of its Restricted Subsidiaries creates or acquires any Subsidiary after the date of this Indenture, if required by Section 4.18, Concentra shall cause such Subsidiary to comply with the provisions of Section 4.18 and this Article 10, to the extent applicable.

 

SECTION 10.04             Guarantors May Consolidate, etc., on Certain Terms.

 

Except as otherwise provided in this Section 10.04, from and after the Assumption and upon execution and delivery of the Assumption Date Supplemental Indenture, no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into another Person (other than either of the Issuer or another Guarantor) or consummate a Division as the Dividing Person (in each case, whether or not such Guarantor is the surviving Person), unless:

 

(1)            immediately after giving effect to such transaction, no Default or Event of Default exists; and

 

 

(2)            either:

 

(a)            the Person (if other than either of the Issuer or a Guarantor) acquiring the property in any such sale or disposition or the Person (if other than either of the Issuer or a Guarantor) formed by or surviving any such consolidation, merger or Division unconditionally assumes all the obligations of that Guarantor, pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee, under this Indenture and the Note Guarantee on the terms set forth herein or therein; or

 

(b)            except in the case of Concentra, such transaction does not violate Section 4.10.

 

In case of any such consolidation, merger, Division, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Issuer and delivered to the Trustee. All the Note Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.

 

Except as set forth in Articles 4 and 5, and notwithstanding clauses and above, nothing contained in this Indenture or in any of the Notes shall prevent any consolidation, merger or Division of a Guarantor with or into either of the Issuer or another Guarantor, or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Issuer or another Guarantor.

 

SECTION 10.05             Releases.

 

The Note Guarantee of a Guarantor will be released:

 

(a)            except in the case of Concentra, in connection with any sale or other disposition of all of the assets of that Guarantor (including by way of merger, consolidation or Division) to a Person that is not (either before or after giving effect to such transaction) the Issuer or a Restricted Subsidiary (other than a Non-Guarantor Subsidiary), if the sale or other disposition does not violate Section 4.10;

 

(b)            except in the case of Concentra, in connection with any sale of the Capital Stock of that Guarantor following which such Guarantor is no longer a Restricted Subsidiary, if the sale or other disposition does not violate Section 4.10;

 

(c)            if Concentra designates any Restricted Subsidiary that is a Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.16 or a Non-Guarantor Subsidiary in accordance with the definition of that term;

 

(d)            except in the case of Concentra, if that Guarantor is released from its guarantee under the Credit Agreement; or

 

(e)            upon legal defeasance or covenant defeasance in accordance with Article 8 or satisfaction and discharge in accordance with Article 12.

 

 

If any Guarantor is released from its Note Guarantee, any of its Subsidiaries that are Guarantors will be released from their Note Guarantees, if any.

 

Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 10.05 shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 10.

 

ARTICLE 11.

 

SATISFACTION AND DISCHARGE

 

SECTION 11.01             Satisfaction and Discharge.

 

This Indenture shall be discharged and shall cease to be of further effect as to all Notes issued hereunder, when:

 

(1)            either:

 

(a)            all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Issuer, have been delivered to the Trustee for cancellation; or

 

(b)            all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or shall become due and payable within one year and the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as shall be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;

 

(2)            no Default or Event of Default has occurred and is continuing on the date of the deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and the deposit shall not result in a breach or violation of, or constitute a default under, any other instrument to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound;

 

(3)            the Issuer or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and

 

(4)            the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be.

 

In addition, the Issuer must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.

 

 

Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to clause (1) of this Section 11.01, the provisions of Sections 11.02 and 8.06 shall survive. In addition, nothing in this Section 11.01 shall be deemed to discharge those provisions of Section 7.07, that, by their terms, survive the satisfaction and discharge of this Indenture.

 

SECTION 11.02             Application of Trust Money.

 

Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

 

To the extent that and so long as the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01; provided, however, that if the Issuer has made any payment of principal of, premium, if any, or interest on any Notes following the reinstatement of their obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.

 

ARTICLE 12.

 

MISCELLANEOUS

 

SECTION 12.01             Notices.

 

Any notice or communication by either of the Issuer, any Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the others’ address:

 

If to the Issuer (including Escrow Issuer) and/or any Guarantor:

 

Concentra Group Holdings Parent, Inc.
4714 Gettysburg Road
P.O. Box 2034
Mechanicsburg Pennsylvania 17055
Telecopier No.: (717) 972-9981
Attention: General Counsel¹

 

¹ Note to Dechert: Please confirm no address changes are contemplated in connection with the Separation.

 

 

If to the Trustee:

 

U.S. Bank Trust Company, National Association.
Corporate Trust Services
100 Wall Street - 6^th Floor
New York, New York 10005
Telecopier No.: (212) 361-6153
Attention: Corporate Trust Administration

 

The Issuer, any Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.

 

All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

 

Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

 

If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

 

If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.

 

The Trustee shall have the right to accept and act upon any notice, instruction, or other communication, including any funds transfer instruction, (each, a “Notice") received pursuant to this Agreement by electronic transmission (including by e-mail, facsimile transmission, web portal or other electronic methods) and shall not have any duty to confirm that the person sending such Notice is, in fact, a person authorized to do so. Electronic signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider identified by any other party hereto and acceptable to the Trustee) shall be deemed original signatures for all purposes. Each other party to this Agreement assumes all risks arising out of the use of electronic signatures and electronic methods to send Notices to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized Notice and the risk of interception or misuse by third parties. Notwithstanding the foregoing, the Trustee may in any instance and in its sole discretion require that a Notice in the form of an original document bearing a manual signature be delivered to the Trustee in lieu of, or in addition to, any such electronic Notice.

 

SECTION 12.02             [Reserved].

 

 

SECTION 12.03             Certificate and Opinion as to Conditions Precedent.

 

Upon any request or application by the Issuer to the Trustee to take any action under this Indenture and upon the Trustee’s reasonable request, the Issuer shall furnish to the Trustee:

 

(1)            an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.04) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and

 

(2)            an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 12.04) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.

 

SECTION 12.04             Statements Required in Certificate or Opinion.

 

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture must include:

 

(1)            a statement that the Person making such certificate or opinion has read such covenant or condition;

 

(2)            a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)            a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and

 

(4)            a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.

 

SECTION 12.05             Rules by Trustee and Agents.

 

The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

 

SECTION 12.06             No Personal Liability of Directors, Officers, Employees and Stockholders.

 

No director, officer, employee, incorporator, stockholder, member, partner or other holder of Equity Interests of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.

 

SECTION 12.07             Governing Law.

 

THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

 

SECTION 12.08             No Adverse Interpretation of Other Agreements.

 

This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

SECTION 12.09             Successors.

 

All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.04.

 

SECTION 12.10             Severability.

 

In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

SECTION 12.11             Counterpart Originals.

 

The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

SECTION 12.12             Table of Contents, Headings, etc.

 

The Table of Contents and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

 

ARTICLE 13.

 

ESCROW GUARANTEE

 

SECTION 13.01             Guarantee of Escrow Guaranteed Obligations.

 

(a)            Escrow Guarantor unconditionally and irrevocably guarantees that the Escrow Guaranteed Obligations will be performed and will be promptly paid in full in cash when due and payable, whether at the stated or accelerated maturity thereof, on demand or otherwise, this guarantee being a guarantee of payment and not of collectability and being absolute and in no way conditional or contingent. In the event that a Special Mandatory Redemption is required hereunder, the Escrow Guarantor will pay or cause to be paid to the Trustee for the benefit of the Holders the amount of such Escrow Guaranteed Obligations which is then due and payable and unpaid. The Escrow Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Escrow Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment in full of all of the Obligations of the Escrow Issuer hereunder or under the Notes). The Escrow Guarantor hereby waives, to the fullest extent permitted by law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Escrow Issuer, any right to require a proceeding first against the Escrow Issuer, protest, notice and all demands whatsoever and covenants that the Escrow Guarantee shall not be discharged except by full payment of the obligations contained in the Notes and this Indenture or by release in accordance with the provisions of this Indenture. All payments pursuant to this Article 13 shall be made in the same currency as the underlying Escrow Guaranteed Obligations.

 

 

(b)            For the avoidance of doubt, the maximum aggregate liability of the Escrow Guarantor pursuant to this Article 13 shall not exceed the Escrow Guaranteed Obligations.

 

SECTION 13.02             Continuing Obligation.

 

The Escrow Guarantor acknowledges that the Trustee has entered into this Indenture in reliance on this Article 13 being a continuous irrevocable agreement, and the Escrow Guarantor agrees that its guarantee may not be revoked in whole or in part and that its obligations hereunder shall terminate only in accordance with Section 13.06.

 

SECTION 13.03             Subrogation.

 

The Escrow Guarantor agrees that, until the Escrow Guaranteed Obligations are paid in full, they will not exercise any right of reimbursement, subrogation, contribution, offset or other claims against the Escrow Issuer or any other guarantor arising by contract or operation of law in connection with any payment made or required to be made by the Escrow Guarantor pursuant to this Article 13.

 

SECTION 13.04             Subordination.

 

The Escrow Guarantor covenants and agrees that all Indebtedness, claims and liabilities now or hereafter owing by the Escrow Issuer or any other guarantor to the Escrow Guarantor, whether arising hereunder or otherwise, are subordinated to the prior payment in full of the Escrow Guaranteed Obligations and are so subordinated as a claim against the Escrow Guarantor or any of its assets, whether such claim be in the ordinary course of business or in the event of voluntary or involuntary liquidation, dissolution, insolvency or bankruptcy, so that no payment with respect to any such Indebtedness, claim or liability will be made or received while any Event of Default exists.

 

SECTION 13.05             Assignment.

 

The Escrow Guarantor may not assign its rights or obligations under the Escrow Guaranteed Obligations without the written consent of the Trustee.

 

SECTION 13.06             Termination.

 

The Escrow Guaranteed Obligations shall automatically terminate upon the earlier of (a) the time the Escrow Release is consummated and (b) the date the Escrow Guaranteed Obligations are paid in full.

 

(Signature Pages Follow)

 

 

SIGNATURES

 

Dated as of July 11, 2024

 

	CONCENTRA ESCROW ISSUER CORPORATION, as Issuer
	By:	/s/ Michael E. Tarvin
		Name: Michael E. Tarvin
		Title: Executive Vice President and Secretary
	CONCENTRA HEALTH SERVICES, INC., solely as Escrow Guarantor
	By:	/s/ Michael E. Tarvin
		Name: Michael E. Tarvin
		Title: Executive Vice President and Secretary
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
	By:	/s/ James W. Hall
		Name: James W. Hall
		Title: Authorized Signatory

 

[Signature Page to Indenture]

 

 

EXHIBIT A1

 

[Face of Note]

 

CUSIP/ISIN ___________

 

6.875% Senior Note due 2032

 

No.  ___

$____________

 

CONCENTRA ESCROW ISSUER CORPORATION
(whose obligations are to be assumed by CONCENTRA HEALTH SERVICES, INC. subject to the terms and conditions in the within-mentioned Indenture)

 

CONCENTRA ESCROW ISSUER CORPORATION promises to pay to Cede & Co. or registered assigns, the principal sum of ___________________ DOLLARS on July 15, 2032.

 

Interest Payment Dates: January 15 and July 15

 

Record Dates: January 1 and July 1

 

Dated: July 11, 2024

 

	CONCENTRA ESCROW ISSUER CORPORATION
	By:
		Name:
		Title:

 

 

This is one of the Notes referred to
in the within-mentioned Indenture:

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee

 

By:___________________________

Authorized Signatory

 

 

[Back of Note]
6.875% Senior Note due 2032

 

[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]

 

[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]

 

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

 

(1)            INTEREST. Concentra Escrow Issuer Corporation, a Delaware corporation (the “Issuer”), promises to pay interest on the principal amount of this Note at 6.875% per annum from July 11, 2024 until maturity. The Issuer shall pay interest semi-annually in arrears on January 15 and July 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be January 15, 2025. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is the rate then in effect; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.

 

(2)            METHOD OF PAYMENT. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the January 1 or July 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes shall be payable as to principal, interest and premium, if any, at the office or agency of the Paying Agent within the City and State of New York, or, at the option of the Issuer, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds shall be required with respect to principal of and interest, premium, if any, on, all Global Notes and all other Notes the Holder (if such Holder holds at least $1.0 million in aggregate principal amount of Notes) of which shall have provided wire transfer instructions to the Issuer prior to the record date. Payment of principal of, premium, if any, and interest on, Global Notes registered in the name of or held by DTC or any successor depositary or its nominee will be made by wire transfer of immediately available funds to such depositary or its nominee, as the case may be, as the registered Holder of such Global Note. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 

(3)            PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to any Holder. The Issuer or any of its Subsidiaries may act in any such capacity.

 

 

(4)            INDENTURE. The Issuer issued the Notes under an Indenture dated as of July 11, 2024 (the “Indenture”), among the Issuer, the Escrow Guarantor and the Trustee. The terms of the Notes include only those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are general unsecured obligations of the Issuer. Subject to the conditions set forth in the Indenture, the Issuer may issue Additional Notes.

 

(5)            OPTIONAL REDEMPTION.

 

(a)            Except as set forth in subparagraph (b) or (c) of this Paragraph 5, the Issuer shall not have the option to redeem the Notes prior to July 15, 2027. On or after July 15, 2027, the Issuer may redeem all or part of the Notes upon not less than 10 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest thereon to the applicable redemption date, if redeemed during the twelve-month period beginning on July 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:

 

Year			Percentage
2027				103.438	%
2028				101.719	%
2029 and thereafter				100.000	%

 

(b)            Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to July 15, 2027, the Issuer may, on any one or more occasions, redeem up to 40% of the aggregate principal amount of Notes issued under the Indenture (including Additional Notes) at a redemption price of 106.875% of the principal amount thereof, plus accrued and unpaid interest to the redemption date with the net cash proceeds of one or more Equity Offerings by the Issuer or a contribution to the equity capital of the Issuer (other than Disqualified Stock) from the net proceeds of one or more Equity Offerings by Holdings or any other direct or indirect parent of the Issuer (in each case, other than Excluded Contributions); provided that (i) at least 50% in aggregate principal amount of the Notes originally issued under the Indenture (including Additional Notes but excluding Notes held by the Issuer and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and (ii) the redemption occurs within 180 days of the date of the closing of such Equity Offering or equity contribution.

 

(c)            Before July 15, 2027, the Issuer may also redeem all or any portion of the Notes upon not less than 10 nor more than 60 days’ prior notice, at a redemption price equal to 100% of the principal amount thereof plus the Applicable Premium as of, and accrued and unpaid interest thereon, if any, to, the Make-Whole Redemption Date.

 

(6)            MANDATORY REDEMPTION. Except as set forth below with respect to the Special Mandatory Redemption, other than with respect to any such obligations that may arise as set forth under Paragraph 7 below, the Issuer shall not be required to make mandatory redemption payments with respect to the Notes.

 

 

(7)            SPECIAL MANDATORY REDEMPTION.

 

(a)            In the event that (i) on or prior to September 30, 2024 (the “Outside Date”), the Escrow Agent and the Trustee shall not have received the Officer’s Certificate described in the Indenture certifying that the Escrow Release Conditions (as defined in the Escrow Agreement) will be met promptly following the Escrow Release on the Escrow Release Date or (ii) Concentra shall notify the Escrow Agent in writing that Concentra has determined that the Separation will not be consummated on or prior to the Outside Date or otherwise announces that the Separation and the Initial Public Offering have been or will be abandoned (each such event being a “Special Mandatory Redemption Event”), the Escrow Issuer will redeem the notes (the “Special Mandatory Redemption”) at a price equal to 100% of the initial issue price of the Notes, plus accrued and unpaid interest from the Issue Date, or from the most recent date to which interest has been paid, to, but not including the Special Mandatory Redemption Date (the “Special Mandatory Redemption Price”). Within three Business Days following the occurrence of a Special Mandatory Redemption Event, the Escrow Issuer shall deliver a notice to the Trustee and the Escrow Agent of the occurrence thereof (a “Special Redemption Notice”). Within five Business Days after the Special Mandatory Redemption Event or as otherwise required by DTC’s procedures, the Escrow Issuer will redeem the notes at the Special Mandatory Redemption Price pursuant to the procedures described in Section 3.10(d) of the Indenture (the date of such redemption, the “Special Mandatory Redemption Date”).

 

(b)            If the Escrow Agent receives a Special Redemption Notice, the Escrow Agent will liquidate all Escrowed Funds then held by it not later than the last Business Day prior to the Special Mandatory Redemption Date. On the Business Day prior to the Special Mandatory Redemption Date, the Escrow Agent shall pay to the Trustee for payment to each Holder the Special Mandatory Redemption Price for such Holder’s notes. Any redemption made pursuant to Section 3.10 of the Indenture shall be made pursuant to the procedures set forth in the Indenture and the Escrow Agreement, except to the extent inconsistent with Section 3.10 of the Indenture, which shall control in the event of a conflict.

 

(8)            REPURCHASE AT THE OPTION OF HOLDER.

 

(a)            If there is a Change of Control, each Holder shall have the right to require the Issuer to make an offer (a “Change of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased, if any, to the date of purchase, subject to the rights of the Holders on the relevant record date to receive interest due on the relevant Interest Payment Date (the “Change of Control Payment”). Within 30 days following any Change of Control, the Issuer shall mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture.

 

(b)            If the Issuer or a Restricted Subsidiary consummates any Asset Sales, within 10 Business Days of each date on which the aggregate amount of Excess Proceeds exceeds $60.0 million, the Issuer shall commence an Asset Sale Offer to all Holders and if the Issuer elects (or is required by the terms of such other pari passu indebtedness) any holders of other Indebtedness that is pari passu in right of payment with the Notes pursuant to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes and other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the Purchase Date in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer (or such Restricted Subsidiary) may use the remaining Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis. Holders to whom an Asset Sale Offer is addressed shall receive an Asset Sale Offer from the Issuer prior to the related Purchase Date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

 

 

(9)            NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 10 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest will cease to accrue on Notes or portions thereof called for redemption unless the Issuer defaults in the payment of the redemption price or the applicable notice of redemption is conditional in accordance with Section 3.04 of the Indenture and the conditions are not satisfied or waived.

 

(10)            DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

 

(11)            PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

 

(12)            AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture, the Note Guarantees or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes, including without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes, and any existing Default or Event of Default or compliance with any provision of the Indenture, the Note Guarantees or the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, including without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes. Without the consent of any Holder, the Indenture, the Note Guarantees or the Notes may be amended or supplemented (i) to cure any ambiguity, defect or inconsistency, (ii) to provide for uncertificated Notes in addition to or in place of certificated Notes, (iii) to provide for the assumption of the Issuer’s or any Guarantor’s obligations to Holders in case of a merger, consolidation or Division or sale of all or substantially all of the Issuer’s or such Guarantor’s assets, as applicable, (iv) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under the Indenture of any such Holder, (v) to conform the text of the Indenture, the Note Guarantees or the Notes to any provision of the “Description of the notes” section of the Offering Memorandum to the extent that such provision in that “Description of the notes” was intended to be a verbatim recitation of a provision of the Indenture, the Note Guarantees or the Notes, (vi) to provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture as of the Issue Date, (vii) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the Notes or to secure the Notes, or (viii) to issue the Notes.

 

 

(13)            DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30 days in the payment when due of interest on the Notes, whether or not prohibited by the subordination provisions of the Indenture; (ii) default in payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on the Notes whether or not prohibited by the subordination provisions of the Indenture; (iii) failure by Concentra to comply with Section 5.01 of the Indenture; (iv) failure by Concentra or any of its Restricted Subsidiaries for 60 days after notice to the Issuer by the Trustee or the Holders of at least 25% in aggregate principal amount of Notes then outstanding voting as a single class to comply with any of the other agreements in the Indenture; (v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by Concentra or any of its Significant Subsidiaries (or the payment of which is guaranteed by Concentra or any of its Significant Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the Escrow Release Date, if that default: (A) is caused by a failure to pay principal at the final Stated Maturity of such Indebtedness (a “Payment Default”) or (B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $75.0 million or more; (vi) certain final judgments and decrees for the payment of money that remain undischarged for a period of 60 days after such judgment or decree has become final and nonappealable without being paid, discharged, waived or stayed; (vii) except as permitted by the Indenture, any Note Guarantee of any Significant Subsidiary is declared to be unenforceable or invalid by any final and nonappealable judgment or decree or ceases for any reason to be in full force and effect, or any Guarantor that is a Significant Subsidiary or any Person acting on behalf of any Guarantor that is a Significant Subsidiary denies or disaffirms its obligations in writing under its Note Guarantee and such Default continues for 10 days after receipt of the notice specified in the Indenture; (viii) certain events of bankruptcy or insolvency with respect to Concentra or any of Concentra’s Restricted Subsidiaries that is a Significant Subsidiary; and (ix) the failure of the Escrow Issuer to pay or cause to be paid the Special Mandatory Redemption Price on the Special Mandatory Redemption Date, if any, as described in the Indenture. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Issuer, all outstanding Notes shall become due and payable without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal, premium or interest) if a committee of its Responsible Officer determines in good faith that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on, the Notes (including in connection with an offer to purchase). The Issuer is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuer is required within 30 days of becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

 

 

(14)            TRUSTEE DEALINGS WITH ISSUER. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Issuer or its Affiliates, and may otherwise deal with the Issuer or its Affiliates, as if it were not the Trustee.

 

(15)            NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator, stockholder, member partner or other holder of Equity Interests of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or any such Guarantor under the Indenture, the Notes or the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

 

(16)            AUTHENTICATION. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

 

(17)            ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

(18)            Reserved.

 

(19)            CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

 

The Issuer shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

 

Concentra Group Holdings Parent, Inc.
4714 Gettysburg Road
P.O. Box 2034
Mechanicsburg, Pennsylvania 17055
Telecopier No.: (717) 975-9981

 

Attention: General Counsel

 

 

ASSIGNMENT FORM

 

To assign this Note, fill in the form below:

 

(I) or (we) assign and transfer this Note to: ______________________________________

(Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

(Print or type assignee’s name, address and zip code)

 

and irrevocably appoint____________________________________________ to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

 

Date: _______________

 

	Your Signature:
		(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*: _________________________

 

*

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:

 

¨ Section 4.10                   ¨ Section 4.15

 

If you want to elect to have only part of the Note purchased by the Issuer pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

 

$_________________

 

Date: _______________

 

	Your Signature:
		(Sign exactly as your name appears on the face of this Note)

	Tax Identification No.:

 

Signature Guarantee*: _________________________

 

*

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

SCHEDULE OF EXCHANGES OF GLOBAL NOTE

 

The following exchanges of a part of this Global Note for an interest in another Global Note, or exchanges in part of another other Restricted Global Note for an interest in this Global Note, have been made:

 

Date of Exchange		Amount of decrease in Principal Amount of this Global Note		Amount of increase in Principal Amount of this Global Note		Principal Amount of this Global Note following such decrease (or increase)		Signature of authorized officer of Trustee or Custodian

*            This schedule should be included only if the Note is issued in global form.

 

 

EXHIBIT A2

 

[Face of Regulation S Temporary Global Note]

 

CUSIP/ISIN __________

 

6.875% Senior Note due 2032

 

No.  ___

$_______

 

CONCENTRA ESCROW ISSUER CORPORATION
(whose obligations are to be assumed by CONCENTRA HEALTH SERVICES, INC.)

 

CONCENTRA ESCROW ISSUER CORPORATION promises to pay to Cede & Co. or registered assigns, the principal sum of __________________ DOLLARS on July 15, 2032.

 

Interest Payment Dates: January 15 and July 15

 

Record Dates: January 1 and July 1

 

Dated: July 11, 2024

 

	CONCENTRA ESCROW ISSUER CORPORATION
	By:
		Name:
		Title:

 

 

This is one of the Notes referred to
in the within-mentioned Indenture:

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee

 

By:___________________________

Authorized Signatory

 

 

[Back of Regulation S Temporary Global Note]
6.875% Senior Note due 2032

 

[Insert Regulation S Temporary Global Legend]

 

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

 

(1)            INTEREST. Concentra Escrow Issuer Corporation, a Delaware corporation (the “Issuer”), promises to pay interest on the principal amount of this Note at 6.875% per annum from July 11, 2024 until maturity. The Issuer shall pay interest semi-annually in arrears on January 15 and July 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be January 15, 2025. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is the rate then in effect; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.

 

(2)            METHOD OF PAYMENT. The Issuer shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the January 1 or July 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes shall be payable as to principal, interest and premium, if any, at the office or agency of the Paying Agent within the City and State of New York, or, at the option of the Issuer, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds shall be required with respect to principal of and interest, premium, if any, on, all Global Notes and all other Notes the Holder (if such Holder holds at least $1.0 million in aggregate principal amount of Notes) of which shall have provided wire transfer instructions to the Issuer prior to the record date. Payment of principal of, premium, if any, and interest on, Global Notes registered in the name of or held by DTC or any successor depositary or its nominee will be made by wire transfer of immediately available funds to such depositary or its nominee, as the case may be, as the registered Holder of such Global Note. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 

(3)            PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to any Holder. The Issuer or any of its Subsidiaries may act in any such capacity.

 

(4)            INDENTURE. The Issuer issued the Notes under an Indenture dated as of July 11, 2024 (the “Indenture”), among the Issuer, the Escrow Guarantor and the Trustee. The terms of the Notes include only those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are general unsecured obligations of the Issuer. Subject to the conditions set forth in the Indenture, the Issuer may issue Additional Notes.

 

 

(5)            OPTIONAL REDEMPTION.

 

(a)            Except as set forth in subparagraph (b) or (c) of this Paragraph 5, the Issuer shall not have the option to redeem the Notes prior to July 15, 2027. On or after July 15, 2027, the Issuer may redeem all or part of the Notes upon not less than 10 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest thereon to the applicable redemption date, if redeemed during the twelve-month period beginning on July 15 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:

 

Year			Percentage
2027				103.438	%
2028				101.719	%
2029 and thereafter				100.000	%

 

(b)            Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior to July 15, 2027, the Issuer may, on any one or more occasions, redeem up to 40% of the aggregate principal amount of Notes issued under the Indenture (including Additional Notes) at a redemption price of 106.875% of the principal amount thereof, plus accrued and unpaid interest to the redemption date with the net cash proceeds of one or more Equity Offerings by the Issuer or a contribution to the equity capital of the Issuer (other than Disqualified Stock) from the net proceeds of one or more Equity Offerings by Holdings or any other direct or indirect parent of the Issuer (in each case, other than Excluded Contributions); provided that (i) at least 50% in aggregate principal amount of the Notes originally issued under the Indenture (including Additional Notes but excluding Notes held by the Issuer and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and (ii) the redemption occurs within 180 days of the date of the closing of such Equity Offering or equity contribution.

 

(c)            Before July 15, 2027, the Issuer may also redeem all or any portion of the Notes upon not less than 10 nor more than 60 days’ prior notice, at a redemption price equal to 100% of the principal amount thereof plus the Applicable Premium as of, and accrued and unpaid interest thereon, if any, to, the Make-Whole Redemption Date.

 

(6)            MANDATORY REDEMPTION. Except as set forth below with respect to the Special Mandatory Redemption, other than with respect to any such obligations that may arise as set forth under Paragraph 7 below, the Issuer shall not be required to make mandatory redemption payments with respect to the Notes.

 

(7)            SPECIAL MANDATORY REDEMPTION.

 

(a)            In the event that (i) on or prior to September 30, 2024 (the “Outside Date”), the Escrow Agent and the Trustee shall not have received the Officer’s Certificate described in the Indenture certifying that the Escrow Release Conditions (as defined in the Escrow Agreement) will be met promptly following the Escrow Release on the Escrow Release Date or (ii) Concentra shall notify the Escrow Agent in writing that Concentra has determined that the Separation will not be consummated on or prior to the Outside Date or otherwise announces that the Separation and the Initial Public Offering have been or will be abandoned (each such event being a “Special Mandatory Redemption Event”), the Escrow Issuer will redeem the notes (the “Special Mandatory Redemption”) at a price equal to 100% of the initial issue price of the Notes, plus accrued and unpaid interest from the Issue Date, or from the most recent date to which interest has been paid, to, but not including the Special Mandatory Redemption Date (the “Special Mandatory Redemption Price”). Within three Business Days following the occurrence of a Special Mandatory Redemption Event, the Escrow Issuer shall deliver a notice to the Trustee and the Escrow Agent of the occurrence thereof (a “Special Redemption Notice”). Within five Business Days after the Special Mandatory Redemption Event or as otherwise required by DTC’s procedures, the Escrow Issuer will redeem the notes at the Special Mandatory Redemption Price pursuant to the procedures described in Section 3.10(d) of the Indenture (the date of such redemption, the “Special Mandatory Redemption Date”).

 

 

(b)            If the Escrow Agent receives a Special Redemption Notice, the Escrow Agent will liquidate all Escrowed Funds then held by it not later than the last Business Day prior to the Special Mandatory Redemption Date. On the Business Day prior to the Special Mandatory Redemption Date, the Escrow Agent shall pay to the Trustee for payment to each Holder the Special Mandatory Redemption Price for such Holder’s notes. Any redemption made pursuant to Section 3.10 of the Indenture shall be made pursuant to the procedures set forth in the Indenture and the Escrow Agreement, except to the extent inconsistent with Section 3.10 of the Indenture, which shall control in the event of a conflict.

 

(8)            REPURCHASE AT THE OPTION OF HOLDER.

 

(a)            If there is a Change of Control, each Holder shall have the right to require the Issuer to make an offer (a “Change of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased, if any, to the date of purchase, subject to the rights of the Holders on the relevant record date to receive interest due on the relevant Interest Payment Date (the “Change of Control Payment”). Within 30 days following any Change of Control, the Issuer shall mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture.

 

(b)            If the Issuer or a Restricted Subsidiary consummates any Asset Sales, within 10 Business Days of each date on which the aggregate amount of Excess Proceeds exceeds $60.0 million, the Issuer shall commence an Asset Sale Offer to all Holders and if the Issuer elects (or is required by the terms of such other pari passu indebtedness) any holders of other Indebtedness that is pari passu in right of payment with the Notes pursuant to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes and other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the Purchase Date in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer (or such Restricted Subsidiary) may use the remaining Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis. Holders to whom an Asset Sale Offer is addressed shall receive an Asset Sale Offer from the Issuer prior to the related Purchase Date and may elect to have such Notes purchased by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.

 

 

(9)            NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 10 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest will cease to accrue on Notes or portions thereof called for redemption unless the Issuer defaults in the payment of the redemption price or the applicable notice of redemption is conditional in accordance with Section 3.04 of the Indenture and the conditions are not satisfied or waived.

 

(10)            DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

 

(11)            PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.

 

(12)            AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture, the Note Guarantees or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes, including without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes, and any existing Default or Event of Default or compliance with any provision of the Indenture, the Note Guarantees or the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, including without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes. Without the consent of any Holder, the Indenture, the Note Guarantees or the Notes may be amended or supplemented (i) to cure any ambiguity, defect or inconsistency, (ii) to provide for uncertificated Notes in addition to or in place of certificated Notes, (iii) to provide for the assumption of the Issuer’s or any Guarantor’s obligations to Holders in case of a merger, consolidation or Division or sale of all or substantially all of the Issuer’s or such Guarantor’s assets, as applicable, (iv) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under the Indenture of any such Holder, (v) to conform the text of the Indenture, the Note Guarantees or the Notes to any provision of the “Description of the notes” section of the Offering Memorandum to the extent that such provision in that “Description of the notes” was intended to be a verbatim recitation of a provision of the Indenture, the Note Guarantees or the Notes, (vi) to provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture as of the Issue Date, (vii) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the Notes or to secure the Notes, or (viii) to issue the Notes.

 

 

(13)            DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30 days in the payment when due of interest on the Notes, whether or not prohibited by the subordination provisions of the Indenture; (ii) default in payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on the Notes whether or not prohibited by the subordination provisions of the Indenture; (iii) failure by Concentra to comply with Section 5.01 of the Indenture; (iv) failure by Concentra or any of its Restricted Subsidiaries for 60 days after notice to the Issuer by the Trustee or the Holders of at least 25% in aggregate principal amount of Notes then outstanding voting as a single class to comply with any of the other agreements in the Indenture; (v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by Concentra or any of its Significant Subsidiaries (or the payment of which is guaranteed by Concentra or any of its Significant Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the Escrow Release Date, if that default: (A) is caused by a failure to pay principal at the final Stated Maturity of such Indebtedness (a “Payment Default”) or (B) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $75.0 million or more; (vi) certain final judgments and decrees for the payment of money that remain undischarged for a period of 60 days after such judgment or decree has become final and nonappealable without being paid, discharged, waived or stayed; (vii) except as permitted by the Indenture, any Note Guarantee of any Significant Subsidiary is declared to be unenforceable or invalid by any final and nonappealable judgment or decree or ceases for any reason to be in full force and effect, or any Guarantor that is a Significant Subsidiary or any Person acting on behalf of any Guarantor that is a Significant Subsidiary denies or disaffirms its obligations in writing under its Note Guarantee and such Default continues for 10 days after receipt of the notice specified in the Indenture; (viii) certain events of bankruptcy or insolvency with respect to Concentra or any of Concentra’s Restricted Subsidiaries that is a Significant Subsidiary; and (ix) the failure of the Escrow Issuer to pay or cause to be paid the Special Mandatory Redemption Price on the Special Mandatory Redemption Date, if any, as described in the Indenture. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to the Issuer, all outstanding Notes shall become due and payable without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal, premium or interest) if a committee of its Responsible Officer determines in good faith that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on, the Notes (including in connection with an offer to purchase). The Issuer is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuer is required within 30 days of becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

 

(14)            TRUSTEE DEALINGS WITH ISSUER. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Issuer or its Affiliates, and may otherwise deal with the Issuer or its Affiliates, as if it were not the Trustee.

 

(15)            NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator, stockholder, member partner or other holder of Equity Interests of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or any such Guarantor under the Indenture, the Notes or the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

 

 

(16)        AUTHENTICATION. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

 

(17)        ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

(18)         Reserved.

 

(19)         CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

 

The Issuer shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

 

Concentra Group Holdings Parent, Inc.
4714 Gettysburg Road
P.O. Box 2034
Mechanicsburg, Pennsylvania 17055
Telecopier No.: (717) 975-9981

 

Attention: General Counsel

 

 

ASSIGNMENT FORM

 

To assign this Note, fill in the form below:

 

	(I)	or (we) assign and transfer this Note to:
			(Insert assignee’s legal name)

 

(Insert assignee’s soc. sec. or tax I.D. no.)

(Print or type assignee’s name, address and zip code)

 

and irrevocably appoint____________________________________________ to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

 

Date: _______________

 

	Your Signature:
		(Sign exactly as your name appears on the face of this Note)

 

Signature Guarantee*: _________________________

 

*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

OPTION OF HOLDER TO ELECT PURCHASE

 

If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:

 

[    ] Section 4.10                [   ] Section 4.15

 

If you want to elect to have only part of the Note purchased by the Issuer pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:

 

$_________________

 

Date: _______________

 

	Your Signature:
		(Sign exactly as your name appears on the face of this Note)
	Tax Identification No.:

 

Signature Guarantee*: _________________________

 

*	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

 

SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE

 

The following exchanges of a part of this Regulation S Temporary Global Note for an interest in another Global Note, or exchanges in part of another other Restricted Global Note for an interest in this Regulation S Temporary Global Note, have been made:

 

Date of Exchange		Amount of decrease in Principal Amount of this Global Note		Amount of increase in Principal Amount of this Global Note		Principal Amount of this Global Note following such decrease (or increase)		Signature of authorized officer of Trustee or Custodian

*	This schedule should be included only if the Note is issued in global form.

 

 

EXHIBIT B

 

FORM OF CERTIFICATE OF TRANSFER

 

Concentra Group Holdings Parent, Inc.
4714 Gettysburg Road
P.O. Box 2034
Mechanicsburg, Pennsylvania 17055

 

U.S. Bank Trust Company, National Association
[Corporate Trust Services
100 Wall Street - 6^th Floor
New York, New York 10005]²

 

Re: 6.875% Senior Notes due 2032

 

Reference is hereby made to the Indenture, dated as of July 11, 2024 (the “Indenture”), by and among Concentra Escrow Issuer Corporation, a Delaware corporation (the “Issuer”), Concentra Health Services, Inc., a Nevada corporation, and U.S. Bank Trust Company, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

___________________ (the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to ___________________________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

 

[CHECK ALL THAT APPLY]

 

1.            ¨ CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

 

² NTD: To confirm address.

 

 

2.            ¨ CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903 or Rule 904 of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

 

3.            ¨ CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

 

(a)            ¨ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;

 

or

 

(b)            ¨ such Transfer is being effected to the Issuer or a subsidiary thereof;

 

or

 

(c)            ¨ such Transfer is being effected pursuant to an effective registration statement under the Securities Act.

 

4.            ¨ CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.

 

(a)          ¨ CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

 

 

(b)          ¨ CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

 

(c)          ¨ CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.

 

 

	[Insert Name of Transferor]

 

	By:
		Name:
		Title:

 

Dated: _______________________

 

 

ANNEX A TO CERTIFICATE OF TRANSFER

 

1.            The Transferor owns and proposes to transfer the following:

 

[CHECK ONE OF (a) OR (b)]

 

(a)            ¨ a beneficial interest in the:

 

(i)            ¨ 144A Global Note (CUSIP 816196 AT6), or

 

(ii)           ¨ Regulation S Global Note (CUSIP U8148P AG2), or

 

(b)            ¨ a Restricted Definitive Note.

 

2.            After the Transfer the Transferee shall hold:

 

[CHECK ONE]

 

(a)            ¨ a beneficial interest in the:

 

(i)            ¨ 144A Global Note (CUSIP 816196 AT6), or

 

(ii)           ¨ Regulation S Global Note (CUSIP U8148P AG2), or

 

(iii)          ¨ Unrestricted Global Note (CUSIP [ ]); or

 

(b)            ¨ a Restricted Definitive Note; or

 

(c)            ¨ an Unrestricted Definitive Note,

 

in accordance with the terms of the Indenture.

 

 

EXHIBIT C

 

FORM OF CERTIFICATE OF EXCHANGE

 

Concentra Escrow Issuer Corporation
4714 Old Gettysburg Road
P.O. Box 2034
Mechanicsburg, Pennsylvania 17055

 

U.S. Bank Trust Company, National Association
[Corporate Trust Services
100 Wall Street - 6^th Floor
New York, New York 10005]

 

Re: 6.875% Senior Notes due 2027

 

(CUSIP ____________)

 

Reference is hereby made to the Indenture, dated as of July 11, 2024 (the “Indenture”), by and among Concentra Escrow Issuer Corporation, a Delaware corporation (the “Issuer”), Concentra Health Services, Inc., a Nevada corporation and U.S. Bank Trust Company, National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

 

__________________________ (the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $____________ in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:

 

1.            EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE

 

(a)          ¨ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

(b)          ¨ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

 

(c)          ¨ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

(d)          ¨ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

2.            EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES

 

(a)          ¨ CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued shall continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

 

(b)          ¨ CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] “144A Global Note,” Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued shall be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

 

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Issuer.

 

	[Insert Name of Transferor]

 

	By:
		Name:
		Title:

 

Dated: _______________________

 

 

EXHIBIT D

 

[FORM OF NOTATION OF NOTE GUARANTEE]

 

For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in, and subject to the provisions contained in, the Indenture dated as of July 11, 2024 (the “Indenture”) by and among Concentra Escrow Issuer Corporation (the “Issuer”), a Delaware corporation, Concentra Health Services, Inc., a Nevada corporation, as Escrow Guarantor, and U.S. Bank Trust Company, National Association (the “Trustee”), the due and punctual payment of the principal of, premium, if any, and interest on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of all other Obligations of the Issuer to the Holders or the Trustee all in accordance with the terms of the Indenture and in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 11 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee. Each Holder of a Note, by accepting the same, agrees to and shall be bound by such provisions, authorizes and directs the Trustee, on behalf of such Holder, to take such action as may be necessary or appropriate to effectuate the subordination as provided in the Indenture and appoints the Trustee attorney-in-fact of such Holder for such purpose.

 

Capitalized terms used but not defined herein have the meanings given to them in the Indenture.

 

	THE GUARANTORS SET FORTH ON SCHEDULE I HERETO, as Guarantors
	By:
		Name:
		Title:

 

 

SCHEDULE I

 

 

EXHIBIT E1

 

FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED IN CONNECTION WITH THE ASSUMPTION

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of ________________, 20__, by and among Concentra Health Services, Inc., a Nevada corporation (the “Issuer”), the guarantors party hereto (each, a “Guarantor”) and U.S. Bank Trust Company, National Association, as trustee under the Indenture referred to below (the “Trustee”).

 

WITNESSETH

 

WHEREAS, the Escrow Issuer and the Escrow Guarantor have heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of July 11, 2024, providing for the issuance of 6.875% Senior Notes due 2032 (the “Notes”);

 

WHEREAS, substantially concurrently with the execution of this Supplemental Indenture, the Escrow Issuer shall be merged with and into the Issuer, with the Issuer continuing as the surviving entity;

 

WHEREAS, the Indenture provides that the Issuer may assume all obligations of the Escrow Issuer in respect of the Notes and the Indenture, so long as, among other things, the Issuer executes and delivers to the Trustee a supplemental indenture pursuant to which the Issuer will expressly assume the Escrow Issuer’s obligations under the Notes and the Indenture, the Issuer will be substituted for, and may exercise every right and power of, the Escrow Issuer under the Indenture, and the Escrow Issuer will be released from all obligations hereunder and under the Indenture;

 

WHEREAS, the Indenture provides that under certain circumstances each Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which each such Guarantor shall unconditionally guarantee all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Guarantee”);

 

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

 

1.            CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

2.            AGREEMENT TO ASSUME. On the Assumption Date, the Issuer hereby agrees to unconditionally assume the Escrow Issuer’s obligations with respect to the Notes and the Indenture and to be bound by all other applicable provisions of the Notes and the Indenture and to perform all of the obligations and agreements of the “Issuer” under the Notes and the Indenture as if it was in effect with respect to the Issuer since the Escrow Release Date.

 

 

3.            AGREEMENT TO GUARANTEE. Each Guarantor hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in this Indenture including but not limited to Article 11 thereof.

 

4.            NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, stockholder or agent of the Issuer, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes, any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.

 

5.            NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

6.            COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

7.            EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.

 

8.            THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Issuer or the Guarantors.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

 

Dated: _______________, 20___

 

	CONCENTRA HEALTH SERVICES, INC.
	By:
		Name:
		Title:
	[GUARANTOR]

 

	By:
		Name:
		Title:
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
		as Trustee
	By:
		Authorized Signatory

 

 

EXHIBIT E2

 

FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS

 

SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of ________________, 20__, by and among ________________ (the “Guarantor”) and U.S. Bank Trust Company, National Association, as trustee under the Indenture referred to below (the “Trustee”).

 

WITNESSETH

 

WHEREAS, the Escrow Issuer and the Escrow Guarantor have heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of July 11, 2024, providing for the issuance of 6.875% Senior Notes due 2032 (the “Notes”);

 

WHEREAS, in connection with the Assumption, Concentra Health Services, Inc., a Nevada corporation (the “Issuer”) assumed the Escrow Issuer’s obligations with respect to the Notes and the Indenture;

 

WHEREAS, the Indenture provides that under certain circumstances the Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guarantor shall unconditionally guarantee all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Guarantee”);

 

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

 

1.            CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

2.            AGREEMENT TO GUARANTEE. The Guarantor hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in this Indenture including but not limited to Article 11 thereof.

 

3.            NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, stockholder or agent of the Guarantor, as such, shall have any liability for any obligations of the Issuer or any Guarantor under the Notes, any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.

 

 

4.            NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

5.            COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

 

6.            EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.

 

7.            THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guarantor.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

 

Dated: _______________, 20___

 

	[GUARANTOR]
	By:
		Name:
		Title:
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
		as Trustee
	By:
		Authorized Signatory

 

 

 

Exhibit 10.1

 

EXECUTION VERSION

 

CONCENTRA ESCROW ISSUER CORPORATION

6.875% Senior Notes Due 2032

 

ESCROW AGREEMENT

 

ESCROW AGREEMENT (this “Agreement”), dated as of July 11, 2024, among JPMorgan Chase Bank, N.A., as escrow agent and securities intermediary (in such capacities, the “Escrow Agent”), U.S. Bank Trust Company, National Association, as trustee under the Indenture (as defined herein) (in such capacity, the “Trustee” sometimes referred to individually as “Party” and collectively as the “Parties”), and Concentra Escrow Issuer Corporation, a Delaware corporation (the “Escrow Issuer”).

 

R E C I T A L S

 

WHEREAS, this Agreement is being entered into in connection with the Purchase Agreement, dated as of June 26, 2024 (the “Purchase Agreement”), among the Escrow Issuer and J.P. Morgan Securities LLC, as representative of the several initial purchasers named therein (the “Initial Purchasers”), and in connection with the indenture (the “Indenture”), dated as of the date hereof, among the Escrow Issuer, Concentra Health Services, Inc. (the “Issuer”) and the Trustee, relating to the Notes (as defined below) (for the avoidance of doubt, U.S. Bank Trust Company, National Association, in its capacity as Trustee, is not a party to the Purchase Agreement, shall have no duties or obligations thereunder and shall not be deemed to have knowledge of its terms);

 

WHEREAS, pursuant to the terms of the Indenture and the Purchase Agreement, the Escrow Issuer is selling $650 million aggregate principal amount of its 6.875% Senior Notes due 2032 (the “Notes”);

 

WHEREAS, the Issuer will guarantee the obligation of the Escrow Issuer to pay interest that accrues on the Notes but such guarantee shall not apply to the principal amount of the Notes or any other obligations of the Escrow Issuer under the Indenture or this Agreement;

 

WHEREAS, concurrently with the closing of the sale of the Notes, the Initial Purchasers, on behalf of the Escrow Issuer, will deposit with the Escrow Agent, as hereinafter provided, the gross proceeds thereof (which, for the avoidance of doubt, shall equal $650,000,000) into the Escrow Account (as defined below) in the form of immediately available funds in U.S. dollars;

 

WHEREAS, the Notes are being issued as part of the financing related to the separation (the “Separation”) of Concentra Group Holdings Parent, Inc. (the “Company”) from Select Medical Corporation (“SMC”), which will be effectuated through the initial public offering (the “IPO”) of the Company and the execution of a separation agreement between the Company and SMC, as well as certain other agreements, including a tax matters agreement, a transition services agreement and an employee matters agreement related to the Separation (collectively, the “Separation Documents”);

 

 

WHEREAS, in connection with the Release (as defined herein), the Escrow Issuer will merge with and into the Issuer, with the Issuer continuing as the surviving corporation, the Issuer will execute a supplemental indenture whereby it will assume all of the Escrow Issuer’s rights, privileges and obligations under the Notes and the Indenture and each of the guarantors (including the Company) of the Notes (the “Guarantors”) will become a party to the Indenture by executing a supplemental indenture (the “Supplemental Indenture”) resulting in the Guarantors, jointly and severally, unconditionally guaranteeing (the “Guarantees”), on a senior unsecured basis, all of the Issuer’s obligations under the Notes and the Indenture (such transactions, collectively, the “Assumption”);

 

WHEREAS, in connection with the Assumption, the Issuer and the Guarantors will become party to the Purchase Agreement pursuant to a joinder agreement (the “PA Joinder Agreement”);

 

WHEREAS, the gross proceeds of the Notes deposited with the Escrow Agent in the Escrow Account, together with borrowings under its Senior Credit Facilities, will be used (a) upon satisfaction of the escrow conditions set forth in Section 3, by the Company (i) to finance the payment of a cash distribution to a subsidiary of SMC, which SMC intends to use to repay a portion of its existing indebtedness, (ii) to pay expenses incurred by the Initial Purchasers in connection with the purchase and sale of the Notes (including, without limitation, the Escrow Purchasers’ Commission (as defined in the Purchase Agreement) and the other fees and expenses with respect to the foregoing financing arrangements) and (iii) to pay expenses incurred by the Trustee and expenses incurred by the Escrow Agent hereunder;

 

WHEREAS, as security for its obligations under the Notes and the Indenture, by this Agreement the Issuer will grant to the Trustee, for the sole and exclusive benefit of the Trustee and the Holders of the Notes, a first-priority security interest in and lien on the Escrow Accounts and the Collateral (as defined herein);

 

WHEREAS, the Escrow Issuer and the Trustee wish to appoint JPMorgan Chase Bank, N.A., as Escrow Agent for the Escrow Account, and JPMorgan Chase Bank, N.A., is willing to accept such appointment and to act as Escrow Agent for the Escrow Account, in each case upon the terms and subject to the conditions of this Agreement; and

 

WHEREAS, the parties have entered into this Agreement in order to set forth the conditions upon which, and the manner in which, funds will be held in and disbursed from the Escrow Account and released from the security interest and lien described above.

 

 

A G R E E M E N T

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

Section 1. Defined Terms.

 

All terms used but not defined herein shall have the meanings ascribed to them in the Indenture; provided, however, that the Escrow Agent shall not be responsible for determining the meaning of any capitalized term not entirely defined herein. In addition to any other defined terms used herein, the following terms shall constitute defined terms for purposes of this Agreement and shall have the meanings set forth below:

 

“Acceleration Notice” has the meaning set forth in Section 3(d).

 

“Agreement” has the meaning set forth in the preamble hereto.

 

“Assumption” has the meaning set forth in the recitals hereto.

 

“Authorized Representative” has the meaning set forth in Section 10(a).

 

“Business Day” means a day other than a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open, or is authorized or required by law or executive order to be closed, in the State of New York.

 

“Cash Account” has the meaning set forth in Section 2(b)(i).

 

“Collateral” has the meaning set forth in Section 6(a).

 

“Company” has the meaning set forth in the recitals hereto.

 

“Completion Date” has the meaning set forth in the Indenture.

 

“Credit Agreement” has the meaning set forth in the Indenture.

 

“Default” has the meaning set forth in the Indenture.

 

“Default Amount” has the meaning set forth in Section 3(d). “Directive” has the meaning set forth in Section 11.

 

“Eligible Investment” means an interest bearing demand deposit account at JPMorgan Chase Bank, N.A., or a successor investment offered by Escrow Agent.

 

“Escrow Account” has the meaning set forth in Section 2(b)(i).

 

“Escrow Agent” has the meaning set forth in the preamble hereto.

 

“Escrow Conditions” has the meaning set forth in Section 3(a)(ii).

 

“Escrow Funds” has the meaning set forth in Section 2(b)(i).

 

“Escrow Purchasers’ Commission” has the meaning set forth in the Purchase Agreement.

 

“Escrow Redemption Date” means October 4, 2024.

 

“Escrow Redemption Notice” has the meaning set forth in Section 3(b).

 

“Escrow Release Date” has the meaning set forth in Section 3(a).

 

“Escrow Funds” has the meaning set forth in Section 2(b)(ii).

 

 

“Event of Default” has the meaning set forth in the Indenture.

 

“Guarantees” has the meaning set forth in the recitals hereto.

 

“Guarantors” has the meaning set forth in the recitals hereto.

 

“Holder” has the meaning set forth in the Indenture.

 

“Indemnified Person” has the meaning set forth in Section 5.

 

“Indenture” has the meaning set forth in the recitals hereto.

 

“Initial Purchasers” has the meaning set forth in the recitals hereto.

 

“IPO” has the meaning set forth in the recitals hereto.

 

“Issue Date” means July 11, 2024.

 

“Issuer” has the meaning set forth in the recitals hereto.

 

“Lien” has the meaning set forth in the Indenture.

 

“Notes” has the meaning set forth in the recitals hereto.

 

“Offering Memorandum” means the Offering Memorandum dated June 26, 2024 relating to the offering of the Notes.

 

“Outside Date” means September 30, 2024.

 

“PA Joinder Agreement” has the meaning set forth in the recitals hereto.

 

“Parties” means the Escrow Issuer and the Trustee.

 

“PDF” has the meaning set forth in Section 10(a).

 

“Person” means any individual, corporation, company, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization, government (or any agency or political subdivision thereof) or any other entity.

 

“Purchase Agreement” has the meaning set forth in the recitals hereto.

 

“Release” has the meaning set forth in Section 3(a).

 

“Release Request” has the meaning set forth in Section 3(a).

 

“Representative Officer” means any officer of the Escrow Agent who has direct responsibility for the administration of this Agreement and shall also mean any other officer of the Escrow Agent to whom any matter related to this Agreement is referred because of such person’s knowledge of and familiarity with the particular subject matter.

 

 

“Secured Obligations” has the meaning set forth in Section 6(a).

 

“Securities Account” has the meaning set forth in Section 2(b)(i).

 

“Senior Credit Facilities” means the credit facilities entered into by the Issuer, as borrower, pursuant to the Credit Agreement.

 

“Separation” has the meaning set forth in the recitals hereto.

 

“Separation Documents” has the meaning set forth in the recitals hereto.

 

“SMC” has the meaning set forth in the recitals hereto.

 

“Special Mandatory Redemption” means the obligation of the Escrow Issuer to redeem all of the Notes pursuant to Section 3.10 of the Indenture.

 

“Special Mandatory Redemption Date” means the date specified in the Escrow Redemption Notice to redeem all the Notes that is not more than five (5) Business Days following the date such Escrow Redemption Notice is provided pursuant to this Agreement (and in any event no later than the Escrow Redemption Date).

 

“Special Mandatory Redemption Price” means a price equal to 100.0% of the initial issue price of the Notes to be redeemed on the Special Mandatory Redemption Date, plus accrued and unpaid interest thereon from the later of (i) the Issue Date or (ii) the last interest payment date, to, but excluding, such Special Mandatory Redemption Date.

 

“Supplemental Indenture” has the meaning set forth in the recitals hereto.

 

“Trustee” has the meaning set forth in the preamble hereto.

 

“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York.

 

Section 2. Escrow Account; Escrow Agent.

 

(i)            Appointment of the Escrow Agent. The Escrow Issuer and the Trustee hereby appoint JPMorgan Chase Bank, N.A., as Escrow Agent in accordance with the terms and conditions set forth herein, and JPMorgan Chase Bank, N.A., hereby accepts such appointment subject to the terms and conditions set forth herein.

 

 

(ii)

Establishment of Escrow Account.

 

(i)             Concurrently with the execution and delivery hereof, (A) the Escrow Agent shall establish a separate escrow account entitled “JPM AS E/A for Concentra Escrow Issuer Corporation/U.S. Bank Trust Company N.A. Escrow Account” Account Number 878264255 (the “Escrow Account”) and (B) the representative of the Initial Purchasers, at the direction of the Escrow Issuer (which direction is hereby given), shall deposit with the Escrow Agent, for credit to the Escrow Account, the gross proceeds from the sale of the Notes (which, for the avoidance of doubt, shall equal $650,000,000) in the form of immediately available funds in U.S. dollars) (the “Escrow Funds”). At the prior direction of an Authorized Representative of the Escrow Issuer delivered to the Escrow Agent in accordance with this Agreement (with copy to the Trustee of at least five (5) Business Days in advance, Escrow Agent shall establish additional separate escrow accounts, each of which shall collectively be considered to be a “Securities Account”, and together with the Cash Account, collectively, the “Escrow Accounts”. The Escrow Issuer, the Trustee and the Escrow Agent hereby agree that the “securities intermediary’s jurisdiction” of the Escrow Agent is the State of New York for purposes of the UCC, including Section 9-305 and Section 8-110 thereof. The parties hereto agree that the law of the State of New York shall govern the Escrow Account. The provisions of the immediately preceding sentence shall be construed as an amendment to any other account agreement governing the Escrow Account).

 

(ii)            The Escrow Agent shall accept the Escrow Funds and shall hold such funds and the proceeds thereof in the Escrow Account in accordance with the terms of this Agreement. All amounts so deposited and any interest on, and any dividends, distributions, earnings and other payments or proceeds in respect of, any such deposits or invested amounts, less any amounts or property released pursuant to the terms of this Agreement, shall constitute the “Escrow Funds.” The Escrow Agent shall initially hold the Escrow Funds invested in an interest-bearing demand deposit account at JPMorgan Chase Bank, N.A in the Cash Account. The Escrow Funds shall be held in the Escrow Account until disbursed in accordance with the terms hereof. The Escrow Account and all Escrow Funds shall be under the “control” (within the meaning of Section 9-104 and/or 8-106 and 9-106 of the UCC) of the Trustee for the benefit of itself and the Holders of the Notes. The Escrow Agent agrees, subject to the terms of this Agreement, that the Trustee is the entitlement holder (as defined in Section 8-102(7) of the UCC) (the “entitlement holder”) with respect to the Escrow Account and is entitled to exercise the rights that comprise any financial asset and which is credited to such Escrow Accounts, and all securities or other property underlying any financial assets and which are credited to such Escrow Account shall be registered in the name of the Escrow Agent, endorsed to the Escrow Agent, or in blank.

 

(iii)           The obligation and liability of the Escrow Agent to make the payments and transfers required by this Agreement shall be limited to the Escrow Funds. Escrow Agent is hereby authorized to execute purchases and sales of investments for financial assets (as defined below) held in the Securities Account through the facilities of its own trading or capital markets operations or those of any affiliated entity. Escrow Agent or any of its affiliates may receive compensation with respect to any investment directed hereunder including without limitation charging any applicable agency fee in connection with each transaction. Escrow Agent will not provide supervision, recommendations or advice relating to either the investment of moneys or financial assets held in the Escrow Account or the purchase, sale, retention or other disposition of any investment described herein, and each Party acknowledges that it was not offered any investment, tax or accounting advice or recommendation by Escrow Agent with regard to any investment and has made an independent assessment of the suitability and appropriateness for its own purposes of any investment hereunder. Market values, exchange rates and other valuation information (including without limitation, market value, current value or notional value) of any investment furnished in any report or statement may be obtained from third party sources and is furnished for the exclusive use of the Parties. Escrow Agent has no responsibility whatsoever to determine the market or other value of any investment hereunder and makes no representation or warranty, express or implied, as to the accuracy of any such valuations or that any values necessarily reflect the proceeds that may be received on the sale. Escrow Agent shall not have any liability for any loss sustained as a result of any investment made pursuant to the terms of this Agreement or as a result of any liquidation of any investment prior to its maturity or for the failure of an Authorized Representative of the Escrow Issuer to give Escrow Agent instructions to invest or reinvest the Escrow Funds. Escrow Agent or any of its affiliates may receive compensation with respect to any investment directed hereunder, including, without limitation, charging any applicable agency fee or trade execution fee in connection with each transaction. Escrow Agent shall have the right to liquidate any investments (including any financial assets) held in order to provide funds necessary to make required payments under this Agreement.

 

 

(iv)          Notwithstanding anything to the contrary herein, the Escrow Agent shall have no duty to prepare or file any Federal or state tax report or return with respect to any funds held pursuant to this Agreement or any income earned thereon, except for the delivery and filing of tax information reporting forms required to be delivered and filed with the Internal Revenue Service or other taxing authority required by applicable law as indicated in this Agreement. Any interest and other income from investment of the Escrow Funds shall, as of the end of each calendar year and to the extent required by the Internal Revenue Service or other applicable taxing authority, be reported on IRS Form 1099 or 1042S (or other appropriate form) as having been earned by the Escrow Issuer, whether or not such income was disbursed during such calendar year and no other tax withholding or information reporting of any kind is required by Escrow Agent. The Escrow Agent’s function of making payments under this Agreement is solely ministerial and upon express direction of the Parties as provided for in this Agreement. The Escrow Issuer shall indemnify, defend and hold the Escrow Agent harmless from and against any tax, late payment, interest, penalty or other cost or expense that may be assessed against the Escrow Agent on or with respect to the Escrow Funds and the investment thereof unless such tax, late payment, interest, penalty or other expense is with respect to income taxes or similar taxes related to the Escrow Funds or was finally adjudicated to have been directly caused by the bad faith, gross negligence or willful misconduct of the Escrow Agent. The indemnification provided by this Section 2(b)(iv) is in addition to the indemnification provided in Section 5 and shall survive the resignation or removal of the Escrow Agent and the termination of this Agreement. Escrow Agent shall withhold any taxes it deems appropriate in the absence of proper tax documentation or as required by law, and shall remit timely such taxes to the appropriate authorities. The Escrow Agent shall have no other tax withholding or information reporting of any kind, other than what it contemplated in this agreement or required by law.

 

(iii)

Escrow Agent Compensation; Expense Reimbursement.

 

(i)             The Company or the Escrow Issuer shall pay the Escrow Agent fees as separately agreed between the Company or the Escrow Issuer and the Escrow Agent upon execution of this Agreement, which unless otherwise agreed in writing, shall be as described in Schedule 2. The Parties agree that, notwithstanding anything herein to the contrary, to the extent any Party deposits such compensation into an account governed by this Agreement, Escrow Agent shall have the right to withdraw such compensation from such account. Each of the Parties further agrees to the disclosures and agreements set forth in Schedule 2.

 

 

(ii)            The Company or the Escrow Issuer shall reimburse the Escrow Agent, upon request, for all reasonable and documented expenses, disbursements and advances incurred or made by the Escrow Agent in implementing any of the provisions of this Agreement, including compensation and the reasonable and documented fees, expenses and disbursements of its counsel. Except as set forth in Section 3(b) and Section 3(d), the Escrow Agent shall be paid any such expenses owed to it directly by or on behalf of the Company or the Escrow Issuer and shall not disburse from the Escrow Account any such amounts, nor shall the Escrow Agent have any interest in the Escrow Account with respect to such amounts. The provisions of this clause (c) shall survive the termination of this Agreement and survive the resignation or removal of the Escrow Agent.

 

(iv)          Substitution of Escrow Agent. The Escrow Agent may resign by giving no less than 30 days’ prior written notice to the Escrow Issuer and the Trustee. Such resignation shall take effect upon the later to occur of (i) delivery of all Escrow Funds maintained by the Escrow Agent hereunder and copies of all books, records and other documents in the Escrow Agent’s possession relating to the Escrow Funds or this Agreement, in each case to a successor escrow agent mutually approved by the Escrow Issuer and the Trustee (which approvals shall not be unreasonably withheld or delayed) and to an account under the control of the Trustee; provided that the “securities intermediary’s jurisdiction” of such successor escrow agent shall be the State of New York for purposes of the UCC, including Section 9-305 and Section 8-110 thereof, and (ii) the Escrow Issuer, the Trustee and such successor escrow agent entering into this Agreement or any written successor agreement no less favorable to the interests of the Holders of the Notes and the Trustee than this Agreement. The Escrow Agent shall thereupon be discharged of all obligations under this Agreement and shall have no further duties, obligations or responsibilities in connection herewith. If a successor escrow agent has not been appointed or has not accepted such appointment within 30 days after notice of resignation is given to the Escrow Issuer and the Trustee, the Escrow Agent may apply at the expense of the Escrow Issuer to a court of competent jurisdiction for the appointment of a successor escrow agent. No appointed successor escrow agent shall be deemed to be an agent of Escrow Agent. Any entity into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell all or substantially all of its escrow business will automatically become the successor Escrow Agent under this Agreement.

 

 

Section 3. Release of Escrow Funds.

 

(i)            If at any time on or prior to but no later than 10:00 a.m. (New York City time) on the Outside Date, the Escrow Issuer delivers in accordance with this Agreement to the Escrow Agent with a copy to the Trustee an Officer’s Certificate substantially in the form set forth in Annex I hereto (a “Release Request”) certifying between the Parties that the following conditions (collectively, the “Escrow Conditions”) have been or, substantially concurrently with the release of the Escrow Funds, will be satisfied (the “Release”; the date of the release, the “Escrow Release Date”):

 

(1)           the Separation Documents have been executed and delivered by each of the parties thereto in accordance with their respective terms, in each case, with such agreements on terms substantially consistent in all material respects with the terms described in the Offering Memorandum;

 

(2)           the IPO shall have been consummated prior to or substantially concurrently with the Release, on terms substantially consistent in all material respects with the terms described in the Offering Memorandum (which for the avoidance of doubt excludes customary pricing terms for the IPO, which will be determined in connection with the pricing of such IPO);

 

(3)           all conditions precedent to Credit Agreement have been satisfied or waived in accordance with its terms and the lenders under such Credit Agreement have funded, or will substantially concurrently fund, term loans thereunder in an aggregate principal amount of $850.0 million;

 

(4)           the Assumption will be consummated substantially concurrently with the Release and the Issuer will deliver to the Trustee an officers’ certificate and an opinion of counsel, each stating that such Assumption complies with the Indenture;

 

(5)           the Issuer and each of the Guarantors (including the Company) will execute a joinder to the Purchase Agreement and will deliver or cause to be delivered such joinder to J.P. Morgan Securities LLC;

 

(6)           no Default or Event of Default shall have occurred and be continuing under the indenture at the time of, or after giving effect to, the Transactions (as defined in the Indenture); and

 

(7)           all initial purchasers’ discounts and all expenses required to be reimbursed in connection with the offering of the notes shall have been paid, and any Escrowed Funds shall have been used solely for the purposes set forth under the heading “Use of Proceeds” in this offering memorandum.

 

Neither the Escrow Agent nor the Trustee shall have any duty or obligation to verify or investigate the satisfaction of any conditions for release of the Escrow Funds and the Escrow Agent shall act solely upon the Release Request that it receives in accordance with this Agreement.

 

The Escrow Agent shall liquidate all Escrow Funds then held by it and shall in accordance with the Release Request (A) pay (i) if the Escrow Funds has been held in cash, on the next Business Day and (ii) if the Escrow Funds has been invested, on the second Business Day, out of the Escrow Funds, to J.P. Morgan Securities LLC for the account of the Initial Purchasers, $9,750,000 (which is the Escrow Purchasers’ Commission payable by the Escrow Issuer pursuant to Section 2 of the Purchase Agreement together with the fees and expenses the Escrow Issuer and Issuer are responsible for pursuant to Section 6(g) of the Purchase Agreement) and (B) pay all remaining Escrow Funds then held by it to or for the account of (and at the direction of) the Escrow Issuer as directed and in the manner set forth in the Release Request, in each case by wire transfer of immediately available funds in accordance with the instructions set forth in Schedule A of the Release Request at the time set forth in such Release Request. Upon the Release, the Escrow Funds will be paid out from the Escrow Account in accordance with this Agreement and the Release Request and the Escrow Account will be reduced to zero.

 

 

(ii)           If no later than 10:00 a.m. (New York City time) on the Outside Date, the Escrow Agent receives a written notice, substantially in the form set forth in Annex II hereto (an “Escrow Redemption Notice”), from the Escrow Issuer to the Escrow Agent with a copy to the Trustee to the effect that as between the Parties (i) in the reasonable judgment of the Escrow Issuer, the Escrow Conditions will not be satisfied on or prior to the Outside Date or (ii) SMC or the Company announce the separation and the IPO have been abandoned, and, in each case, that the Special Mandatory Redemption is to occur (which notice shall set forth the Special Mandatory Redemption Date and the Special Mandatory Redemption Price), then the Escrow Agent shall in accordance with the Escrow Redemption Notice as soon as practicable thereafter liquidate all Escrow Funds then held by it and pay to the Trustee, to the extent of the proceeds of such liquidated Escrow Funds, an amount in cash in U.S. dollars equal to the Special Mandatory Redemption Price (or, if less, all such proceeds) by wire transfer or via internal transfer of immediately available funds in accordance with the instructions set forth in the Escrow Redemption Notice no later than noon (New York City time) on such Special Mandatory Redemption Date. The Escrow Redemption Notice shall as between the Parties be delivered promptly (and in no event later than three (3) Business Days) following the occurrence of any event specified in subclause (i) or subclause (ii) above.

 

Concurrently, or as soon as practicable thereafter, with such release to the Trustee, the Escrow Agent shall, to the extent of any excess Escrow Funds remaining after payment of the Special Mandatory Redemption Price:

 

(i)             FIRST, pay to the Escrow Agent any amount owed at such time, if any, pursuant to Section 5 hereof and to the Trustee for any amounts owed to it pursuant to Section 3.10 of the Indenture; and

 

(ii)            SECOND, pay any remaining amount of such excess Escrowed Funds to the Escrow Issuer pursuant to written instructions delivered to the Escrow Agent in accordance with this Agreement (in such amount and pursuant to such wire instructions as the Escrow Issuer shall notify the Escrow Agent in the Escrow Redemption Notice),

 

in each case by wire transfer or via internal transfer of immediately available funds in accordance with the instructions and amounts set forth in the Escrow Redemption Notice.

 

In the event that (A) a Release Request has not been delivered by the Escrow Issuer pursuant to Section 3(a) on or prior to 10:00 a.m. (New York City time) on the Outside Date and (B) an Escrow Redemption Notice has not been delivered by the Escrow Issuer pursuant to this Section 3(b) on or prior to 10:00 a.m. (New York City time) on the Outside Date, then the Trustee shall deliver an Escrow Redemption Notice to the Escrow Agent pursuant to this Section 3(b) prior to 11:00 a.m. (New York City time) on the Outside Date to the effect that the Special Mandatory Redemption shall occur on the Escrow Redemption Date, which notice shall specify the Escrow Redemption Date as the Special Mandatory Redemption Date.

 

 

(iii)          If an Escrow Redemption Notice delivered pursuant to Section 3(b) reveals that the amount of cash in U.S. dollars that constitutes the Escrow Funds will be insufficient to pay the Special Mandatory Redemption Price, then within three (3) Business Days after delivery of such Escrow Redemption Notice to the Escrow Agent and the Trustee (if applicable) (and no later than 4:00 p.m. (New York City time) one (1) Business Day prior to the Special Mandatory Redemption Date), the Escrow Issuer or the Company on behalf of the Escrow Issuer shall deposit (or cause to be deposited) with the Escrow Agent in the Escrow Account as additional Escrow Funds an amount of cash in U.S. dollars that, when taken together with the Escrow Funds being held in the Escrow Account at such time, will be sufficient to fund the Special Mandatory Redemption of the Notes at the Special Mandatory Redemption Price on the Special Mandatory Redemption Date as set forth in such notice (which, for the avoidance of doubt, will include the amount of accrued and unpaid interest (as specified in the Indenture) due on the Notes during the period from the Issue Date or the last interest payment date (as applicable) to (but excluding) the Special Mandatory Redemption Date).

 

(iv)          Notwithstanding clauses (a), (b) and (c) above, if the Escrow Agent receives a written notice from the Trustee substantially in the form set forth in Annex III hereto (an “Acceleration Notice”) to the effect that the principal of, and accrued interest on, the Notes (the “Default Amount”) has become immediately due and payable pursuant to Section 6.02 of the Indenture, the Escrow Agent shall liquidate all Escrow Funds then held by it within one (1) Business Day, and shall release to the Trustee for payment to the Holders of the Notes which as between the Parties shall be in accordance with Section 6.01 of the Indenture, to the extent of the proceeds of such liquidated Escrow Funds, an amount of Escrow Funds sufficient to pay the Default Amount (or, if less, all such proceeds). Concurrently with such release to the Trustee, the Escrow Agent shall, out of any excess Escrow Funds:

 

(i)             FIRST, pay to the Escrow Agent any amount owed at such time, if any, pursuant to Section 2(c) hereof, Section 2(b)(iv) hereof and Section 5 hereof and to the Trustee any amounts owed to it pursuant to Section 7.07 of the Indenture; and

 

(ii)            SECOND, pay any remaining amount of such excess Escrow Funds to the Escrow Issuer,

 

in each case by wire transfer or via internal transfer of immediately available funds in accordance with the instructions and amounts set forth in Schedule A to Annex III hereto.

 

Section 4. Limitation of Escrow Agent’s Liability; Responsibilities of Escrow Agent.

 

(a)           The Escrow Agent’s responsibility and liability under this Agreement shall be limited as follows:

 

(i)             the Escrow Agent does not represent, warrant or guaranty to the Trustee or the Holders of the Notes from time to time the performance of the Escrow Issuer;

 

(ii)            the Escrow Agent shall have no responsibility to the Escrow Issuer, the Trustee or the Holders of the Notes from time to time as a consequence of performance or non-performance by the Escrow Agent hereunder, except for any bad faith, gross negligence or willful misconduct of the Escrow Agent as determined by the final and non-appealable judgment of a court of competent jurisdiction;

 

 

(iii)          the Escrow Issuer shall remain solely responsible for all aspects of the Escrow Issuer’s business and conduct;

 

(iv)          the Escrow Agent shall not be obligated to supervise, inspect or inform the Escrow Issuer or any third party of any matter referred to above; and

 

(v)           the Escrow Agent shall not be required to, and shall not, expend or risk any of its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.

 

(b)           In no event shall the Escrow Agent be liable (i) for relying upon any judicial or administrative order or judgment, upon the advice of, or any opinion of, counsel or upon any certification, instruction, notice, or other writing delivered to it by the Escrow Issuer or the Trustee in compliance with the provisions of this Agreement, (ii) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document believed by it in good faith to be genuine and to have been signed or presented by the proper person, (iii) for any indirect, consequential, punitive, incidental, or special damages (including but not limited to loss of profit) regardless of whether the Escrow Agent has been advised of the likelihood of such loss or damage and regardless of the form of action, (iv) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians; provided, that such nominees, correspondents, designees, subagents or subcustodians were chosen in good faith by the Escrow Agent, or (v) for an amount in excess of the value of the Escrowed Funds then credited to the Escrow Account.

 

(c)           The rights and powers granted to the Escrow Agent hereunder are being granted in order to preserve and protect the Trustee’s and the Holders’ security interest in and to the Collateral granted hereby and shall not be interpreted to, and shall not, impose any duties (whether express or implied, and including fiduciary duties) on the Escrow Agent in connection therewith other than those imposed under applicable law. The Escrow Agent shall exercise the same degree of care in the custody and preservation of the Collateral in its possession as it exercises toward its own similar property and shall not be held to any higher standard of care under this Agreement, nor be deemed to owe any fiduciary duty to the Escrow Issuer, the Trustee, the Holders or any other party.

 

(d)           At any time the Escrow Agent may request in writing an instruction in writing from the Escrow Issuer (other than any disbursement pursuant to Section 3(d)), and may at its own option include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder. The Escrow Agent shall not be liable to the Escrow Issuer for acting without the Escrow Issuer’s consent in accordance with such a proposal on or after the date specified therein if (i) the specified date is at least five (5) Business Days after the Escrow Issuer receives the Escrow Agent’s request for instructions and its proposed course of action, and (ii) prior to so acting, the Escrow Agent has not received the written instructions requested from the Escrow Issuer.

 

(e)           The Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement, and the reasonable fees and expenses of such counsel shall be paid by the Escrow Issuer, and shall not be liable for any action taken or omitted in accordance with such advice, except for any such action taken or omitted in bad faith.

 

(f)            In the event of any ambiguity or conflict in the provisions of this Agreement with respect to any funds, securities or property deposited hereunder, or instruction, notice or certification delivered hereunder, the Escrow Agent shall be entitled to refrain from complying with any and all claims, demands or instructions with respect to such funds, securities or property, and the Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until either any conflicting, ambiguous or adverse claims or demands shall have been determined by the final and non-appealable judgment of a court of competent jurisdiction or settled by agreement between the conflicting claimants as evidenced in a writing reasonably satisfactory to the Escrow Agent, or the Escrow Agent shall have received security or an indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless from and against any and all loss, liability or expense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may in addition elect in its sole option to commence an interpleader action or seek other judicial relief or orders as the Escrow Agent may deem necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceedings shall be paid by, and shall be deemed obligations of, the Escrow Issuer.

 

(g)           No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.

 

(h)           The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God, terrorism or war, epidemics, pandemics, the failure or malfunction of communication or computer systems, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility), fire, floods, strikes, public health emergencies, electrical outages, equipment or transmission failure, or other causes reasonably beyond its control.

 

Section 5. Indemnity.

 

The Escrow Issuer shall indemnify, hold harmless and defend the Trustee and the Escrow Agent, its affiliates and their respective directors, officers, agents, employees and controlling persons (each, an “Indemnified Person”) from and against any and all claims, actions, obligations, liabilities and expenses, including reasonable defense costs, reasonable investigative fees and costs, reasonable legal fees, and claims for damages, arising from the Trustee’s or the Escrow Agent’s performance or non-performance, or in connection with the Escrow Agent’s acceptance of appointment as the Escrow Agent, under this Agreement, except to the extent that such liability, expense or claim shall have been caused by the bad faith, gross negligence or willful misconduct of any such Indemnified Person as determined by the final and non-appealable judgment of a court of competent jurisdiction. The provisions of this Section 5 shall survive any termination, satisfaction or discharge of this Agreement as well as the resignation or removal of the Escrow Agent and the Trustee, as applicable.

 

 

Section 6. Grant of Security Interest; Instructions to Escrow Agent.

 

(i)            The Escrow Issuer hereby irrevocably grants a first-priority security interest in and lien on, and pledges, assigns, transfers and sets over to the Trustee for its own benefit and the benefit of the Holders of the Notes, all of its right, title and interest in:

 

(i)             the Escrow Funds, the Escrow Account and all “financial assets” (as such term is defined in Section 8-102(a) of the UCC) and other property now or hereafter placed or deposited in, or delivered to the Escrow Agent for placement or deposit in, the Escrow Account, including, without limitation, all funds held therein, and all Eligible Investments held by (or otherwise maintained in the name of) the Escrow Agent pursuant to Section 2;

 

(ii)            all “security entitlements” (as such term is defined in Section 8-102(a) of the UCC) from time to time credited to the Escrow Account;

 

(iii)           all claims and rights of whatever nature which the Escrow Issuer may now have or hereafter acquire against any third party in respect of any of the Collateral described in this Section 6 (including any claims or rights in respect of any security entitlements credited to an account of the Escrow Agent maintained at The Depository Trust Company or any other clearing corporation) or any other “securities intermediary” (as such terms are defined in Section 8-102(a) of the UCC);

 

(iv)           all rights which the Escrow Issuer has under this Agreement and all rights it may now have or hereafter acquire against the Escrow Agent in respect of its holding and managing all or any part of the Collateral, together with all books and records, credit files, computer files, programs, printouts and other computer materials and records to the extent related thereto and any “general intangibles” (as defined in Article 9 of the New York UCC) at any time to the extent evidencing or to the extent relating to any of the foregoing; and

 

(v)            all “proceeds” (as such term is defined in Section 9-102(a) of the UCC) of any of the foregoing (collectively, the “Collateral”), in order to secure payment of the Special Mandatory Redemption Price and all obligations and indebtedness of the Escrow Issuer under the Indenture, the Notes and any other obligation, now or hereafter arising, of every kind and nature, owed by the Escrow Issuer under the Indenture or the Notes to the Holders of the Notes or to the Trustee or any predecessor Trustee (collectively, the “Secured Obligations”). The Escrow Agent hereby acknowledges the Trustee’s security interest and lien as set forth above. The Escrow Issuer shall not grant or cause or permit any other person to obtain a security interest, encumbrance, lien or other claim, direct or indirect, in the Escrow Issuer’s right, title or interest in the Escrow Account or any Collateral.

 

 

(ii)           The Escrow Issuer hereby irrevocably instructs the Escrow Agent to, and the Escrow Agent shall:

 

(i)             maintain the Escrow Account for the sole and exclusive benefit of the Trustee on its behalf and on behalf of the Holders of the Notes to the extent specifically required herein; treat all property in the Escrow Account as “financial assets” (as defined in Section 8-102(a) of the UCC); take any reasonable steps specified in writing by the Escrow Issuer pursuant to this Section 6 to cause the Trustee to enjoy a continuous perfected first-priority security interest under the UCC, any other applicable statutory or case law or regulation of the State of New York and any applicable law or regulation of the United States in the Collateral, in each case at no cost to the Escrow Agent; and except as otherwise required by law and as set forth in Section 11, maintain the Collateral free and clear of all liens, security interests, safekeeping or other charges, demands and claims of any nature now or hereafter existing in favor of anyone other than the Trustee; and

 

(ii)            promptly notify the Trustee if a Representative Officer of the Escrow Agent receives written notice that any Person other than the Trustee has or purports to have a lien or security interest upon any portion of the Collateral.

 

In addition to requesting disbursement of amounts held in the Escrow Account pursuant to and in accordance with Section 3, upon an Event of Default and for so long as such Event of Default continues, the Trustee may exercise in respect of the Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party under the UCC or other applicable law.

 

The lien and security interest provided for in this Section 6 shall automatically terminate and cease as to, and shall not extend or apply to, and the Trustee and the Escrow Agent shall have no security interest in, any funds disbursed by the Escrow Agent to the Escrow Issuer or the Initial Purchasers in accordance with Section 3 of this Agreement. The Escrow Agent shall not have any right to receive compensation from the Trustee and shall have no authority to obligate the Trustee or to compromise or pledge its security interest hereunder. Accordingly, the Escrow Agent is hereby directed to cooperate with the Trustee in the exercise of its rights in the Collateral provided for herein at no cost to the Escrow Agent.

 

(iii)          Any money collected by the Trustee pursuant to the second to last paragraph of Section 6(b) shall be applied as provided in Section 3(d). Neither the Trustee nor the Escrow Agent shall have any liability for any shortfall in the payment of the Special Mandatory Redemption Price.

 

(iv)          The security interest of the Trustee granted pursuant hereto shall at all times be valid, perfected and enforceable as a first-priority security interest. The Escrow Issuer will take all steps reasonably necessary to maintain the security interest created by this Agreement as a perfected first-priority security interest and will execute and deliver or cause to be executed and delivered, or use its reasonable best efforts to procure, all assignments, instruments and other documents, deliver any instruments to the Trustee and take any other actions that are necessary or desirable, and shall direct the Trustee in writing to take all actions necessary on its part, to perfect, continue the perfection of, or protect the first priority of the Trustee’s security interest in and to the Collateral, to protect the Collateral against the rights, claims, or interests of third persons or to effect the purposes of this Agreement. The Escrow Issuer represents and warrants that its legal name is as set forth on the signature page hereof and it is duly incorporated and validly existing as a corporation, formed under the laws of the State of Delaware and is not formed under the laws of any other jurisdiction, and during the term of this Agreement, the Escrow Issuer will not change its legal name or jurisdiction of formation without giving the Trustee 30 days’ prior written notice.

 

 

The Escrow Issuer also hereby authorizes the Trustee to file any financing or continuation statements with respect to the Collateral in such jurisdictions and filing offices and containing such description of the Collateral as are reasonably necessary in order to perfect the security interest granted herein without the Escrow Issuer’s signature (to the extent permitted by applicable law), and any such filing is hereby authorized to be made by the Initial Purchasers or their counsel on behalf of the Trustee. The Escrow Issuer shall pay all reasonable costs incurred in connection with any of the foregoing, it being understood that the Trustee shall have no duty to determine whether to file or record any document or instrument relating to the Collateral. Notwithstanding the authorizations set forth in clause (b) or this clause (d), neither the Trustee nor the Escrow Agent shall have any duty or obligation to file or record any document or otherwise to see to the grant, validity or perfection of any security interest granted hereunder and the Escrow Issuer agrees to file or to cause to be filed all such UCC financing statements in such jurisdictions and filing offices and containing such description of the Collateral as is necessary in order to perfect the security interest granted herein.

 

(v)           The Escrow Issuer hereby appoints the Trustee as attorney-in-fact with full power of substitution to do any act that the Escrow Issuer is obligated hereby to do, and the Trustee may, but shall not be obligated to, exercise such rights as the Escrow Issuer might exercise with respect to the Collateral and take any action in the Escrow Issuer’s name to protect the Trustee’s security interest hereunder.

 

(vi)          If at any time the Escrow Agent shall receive any “entitlement order” (as such term is defined in Section 8-102(a)(8) of the UCC) or any other instructions issued by the Trustee directing the disposition of funds in the Escrow Account or otherwise related to the Escrow Account, the Escrow Agent shall comply with any such entitlement order or instructions without further consent by the Escrow Issuer or any other person.

 

(vii)         The Escrow Agent represents that it is a “securities intermediary” and that each Securities Account is, and will be at all times, a “securities account” (as each such term is defined in the UCC).

 

(viii)        The Escrow Issuer hereby confirms that the arrangements established under this Section 6 constitute “control” by the Trustee of the Escrow Account (as such term is defined in Article 9 of the UCC). The Escrow Agent and the Escrow Issuer have not entered and will not enter into any other agreement with respect to control of the Escrow Account or purporting to limit or condition the obligation of the Escrow Agent to comply with any orders or instructions of the Trustee with respect to the Escrow Account as set forth in this Section 6. In the event of any conflict with respect to control over the Escrow Account between this Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into, the terms of this Agreement shall prevail.

 

(ix)          The Escrow Agent hereby agrees that any security interest in, lien on, or encumbrance, claim or right of setoff against, the Escrow Account or any funds therein that it now has or subsequently obtains shall be subordinate to the security interest of the Trustee in the Escrow Account and the funds therein or credited thereto. Except as otherwise set forth herein, the Escrow Agent agrees not to exercise any present or future right of recoupment or set-off against the Escrow Account or to assert against the Escrow Account any present or future security interest, banker’s lien or any other lien or claim (including claim for penalties) that the Escrow Agent may at any time have against or in the Escrow Account or any funds therein. It is understood that the Escrow Agent has no responsibility with respect to the validity or perfection of the Trustee’s security interest other than to act in accordance with the terms of this Agreement.

 

 

Section 7. Termination.

 

This Agreement and the security interest in the Escrowed Funds evidenced by this Agreement shall terminate automatically and be of no further force or effect upon the distribution of all Escrowed Funds in accordance with Section 3 hereof; provided, however, that the obligations of the Escrow Issuer under Section 2(b)(iv), Section 2(c) and Section 5 (and any existing claims thereunder) shall survive termination of this Agreement and the resignation or removal of the Escrow Agent.

 

Section 8. Security Interest Absolute.

 

All rights of the Trustee for its own benefit and the benefit of the Holders of the Notes and security interests hereunder, and all obligations of the Escrow Issuer hereunder, shall be absolute and unconditional irrespective of:

 

(i)            any lack of validity or enforceability of the Indenture or any other agreement or instrument relating thereto;

 

(ii)           any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Indenture;

 

(iii)          any exchange, surrender, release or non-perfection of any Liens on any other collateral for all or any of the Secured Obligations; or

 

(iv)          to the extent permitted by applicable law, any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Escrow Issuer in respect of the Secured Obligations or of this Agreement.

 

Section 9. Miscellaneous.

 

(i)            Waiver. Any party hereto may specifically waive any breach of this Agreement by any other party, but no such waiver shall be deemed to have been given unless such waiver is in writing, signed by the waiving party and specifically designating the breach waived, nor shall any such waiver constitute a continuing waiver of similar or other breaches.

 

(ii)           Invalidity. If for any reason whatsoever any one or more of the provisions of this Agreement shall be held or deemed to be inoperative, unenforceable or invalid in a particular case or in all cases, such circumstances shall not have the effect of rendering any of the other provisions of this Agreement inoperative, unenforceable or invalid, and the inoperative, unenforceable or invalid provision shall be construed as if it were written so as to effectuate, to the maximum extent possible, the parties’ intent.

 

 

(iii)          Assignment. This Agreement is personal to the parties hereto, and the rights and duties of the Escrow Issuer hereunder shall not be assignable except with the prior written consent of the other Party and the Escrow Agent and any assignment in violation of this Agreement shall be ineffective and void. Notwithstanding the foregoing, this Agreement shall inure to and be binding upon the parties and their successors and permitted assigns.

 

(iv)          Benefit. This Agreement shall be binding upon the parties hereto and their successors and permitted assigns. Nothing in this Agreement, express or implied, shall give to any person, other than the parties hereto and their permitted successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Agreement except as expressly set forth in Section 2(b)(iv) and Section 5.

 

(v)           Entire Agreement; Amendments. This Agreement (and solely between the Escrow Issuer and the Trustee, the Indenture) contain the entire agreement among the parties with respect to the subject matter hereof and supersede any and all prior agreements, understandings and commitments, whether oral or written. Any amendment or waiver of any provision of this Agreement and any consent to any departure by the Escrow Issuer from any provision of this Agreement shall be in writing and effective only after being executed by each party hereto (and the Parties agree among themselves that any such amendment or waiver shall be made or duly given in compliance with all of the terms and provisions of the Indenture), and neither the Escrow Agent nor the Trustee shall be deemed, by any act, delay, indulgence, omission or otherwise, to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default or in any breach of any of the terms and conditions hereof; provided, for the avoidance of doubt, the Parties agree between themselves that the parties hereto may amend or supplement this Agreement without the consent of any Holder in order to (x) cure any ambiguity, omission, mistake, defect or inconsistency or (y) to conform the text of this Agreement to any provision of the “Description of the Notes” section of the Offering Memorandum. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any rights or remedies provided by law.

 

(vi)          Notices. Except as otherwise provided in Section 11, all notices and other communications required or permitted to be given or made under this Agreement shall be in writing and shall be deemed to have been duly given and received when actually received (i) on the day of delivery; (ii) three (3) Business Days following the day sent, when sent by United States certified mail, postage and certification fee prepaid, return receipt requested, addressed as set forth below; (iii) when transmitted by email or facsimile to the email address or telephone number set forth below with oral or written confirmation of receipt by the recipient; or (iv) one (1) Business Day following the day timely delivered to a next-day air courier addressed as set forth below:

 

To the Escrow Agent:

 

		JPMorgan Chase Bank, N.A.
		Escrow Services
		575 Washington Boulevard 18th Floor
		Jersey City, New Jersey 07310
		Attention: Andrea Gilardi/Kimberly MacFarland
		Email: **********@**********

 

 

To the Trustee:

 

U.S. Bank Trust Company, National Association

100 Wall Street, Suite 600

New York, NY 10005

Attention: James W. Hall

Phone: (551) 427-1335

Email: **********@**********

 

With a copy to (which shall not constitute notice):

 

Anderson Aquino LLP

240 Lewis Wharf

Boston, MA 02110

Attention: David Anderson

Email: **********@**********

 

To the Escrow Issuer:

 

Concentra Escrow Issuer Corporation

5080 Spectrum Drive, Suite 12

West Addison, Texas 75001

Attention: Michael Tarvin

Email: **********@**********

 

With a copy to (which shall not constitute notice):

 

Dechert LLP

2929 Arch Street

Philadelphia, PA 19104

Attention: Stephen Leitzell, Anna Tomczyk

Email: **********@**********; **********@**********

 

or at such other address as the specified entity most recently may have designated in writing in accordance with this Section 9(f). Notwithstanding the foregoing, notices and other communications to the Trustee or the Escrow Agent pursuant to subclauses (ii) and (iv) of this clause (f) shall not be deemed duly given and received until actually received by the Trustee or the Escrow Agent, as applicable, at its address set forth above.

 

 

(vii)        Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by email, facsimile or other electronic transmission (e.g., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof. All notices, approvals, consents, requests and any communications hereunder must be in writing, provided that any communication sent to the Trustee or the Escrow Agent hereunder that is required to be signed must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign, by the authorized representative of the Escrow Issuer. The Escrow Issuer agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to the Trustee and the Escrow Agent, including without limitation the risk of the Trustee and the Escrow Agent acting on unauthorized instructions, and the risk of interception and misuse by third parties.

 

(viii)       Captions. Captions in this Agreement are for convenience only and shall not be considered or referred to in resolving questions of interpretation of this Agreement.

 

(ix)          Choice of Law; Submission to Jurisdiction. THIS AGREEMENT, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE PARTIES TO THIS AGREEMENT HEREBY AGREE THAT JURISDICTION OVER SUCH PARTIES AND OVER THE SUBJECT MATTER OF ANY ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT MAY BE EXERCISED BY A COMPETENT COURT OF THE CITY AND STATE OF NEW YORK, OR BY A COMPETENT UNITED STATES COURT, SITTING IN NEW YORK CITY. EACH OF THE ESCROW ISSUER, THE TRUSTEE AND THE ESCROW AGENT HEREBY SUBMIT TO THE PERSONAL JURISDICTION OF SUCH COURTS. EACH OF THE PARTIES HERETO WAIVES THE RIGHT TO A TRIAL BY JURY. THE ESCROW ISSUER HEREBY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENT TO SERVICE OF PROCESS BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO IT AT THE ADDRESS LAST SPECIFIED FOR NOTICES HEREUNDER, AND SUCH SERVICE SHALL BE DEEMED COMPLETED TEN (10) CALENDAR DAYS AFTER THE SAME IS SO MAILED. FOR PURPOSES OF THE UCC, NEW YORK SHALL BE THE ESCROW AGENT’S JURISDICTION.

 

(x)           Representations and Warranties of Escrow Issuer. The Escrow Issuer hereby represents and warrants that this Agreement has been duly authorized, executed and delivered on its behalf and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms (except as the enforcement thereof may be limited by bankruptcy, reorganization, insolvency (including, without limitation, all laws relating to fraudulent transfers), moratorium or other laws relating to or affecting creditors’ rights and remedies generally and except as the enforcement thereof is subject to equitable principles regardless of whether enforcement is considered in a proceeding at law or in equity). The execution, delivery and performance of this Agreement by the Escrow Issuer (including any instructions delivered hereunder) does not violate any applicable law or regulation to which the Escrow Issuer is subject and does not require the consent of any governmental or other regulatory body to which the Escrow Issuer is subject, except for such consents and approvals as have been obtained and are in full force and effect. The Escrow Issuer is, with respect to the Escrowed Funds delivered pursuant to this Agreement, the beneficial owner of such Escrowed Funds, free and clear of any Lien or claims of any Person (except for the security interest granted under this Agreement) and (D) the person(s) executing this Agreement on the Escrow Issuer's behalf and certifying Authorized Representatives in the applicable Schedule 1 have been duly and properly authorized to do so, and each Authorized Representative of the Escrow Issuer has been duly and properly authorized to take the actions specified for such person in the applicable Schedule 1.

 

 

The Trustee hereby represents and warrants to the Escrow Agent that the person(s) executing this Agreement on the Trustee’s behalf and certifying Authorized Representatives in the applicable Schedule 1 have been duly and properly authorized to do so, and each Authorized Representative of the Trustee has been duly and properly authorized to take the actions specified for such person in the applicable Schedule 1-B.

 

(xi)           No Adverse Interpretation of Other Agreements. This Agreement may not be used to interpret another pledge, security or debt agreement of the Escrow Issuer or any subsidiary thereof. No such pledge, security or debt agreement may be used to interpret this Agreement.

 

(xii)          Interpretation of Agreement. All terms not defined herein or in the Indenture shall have the meaning set forth in the UCC, except where the context otherwise requires. To the extent a term or provision of this Agreement relating to the Trustee or the Escrow Issuer (but not affecting the rights or obligations of Escrow Agent) conflicts with the Indenture, the Indenture shall control with respect to the subject matter of such term or provision. Acceptance of or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection.

 

(xiii)        Survival of Provisions. All representations, warranties and covenants of the Escrow Issuer contained herein shall survive the execution and delivery of this Agreement, and shall terminate only upon the termination of this Agreement.

 

(xiv)        Patriot Act. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account. For a non-individual person such as a business entity, a charity, a trust or other legal entity, the Escrow Agent will ask for documentation to verify its formation and existence as a legal entity. The Escrow Agent may also ask to see financial statements, licenses, identification and authorization documents from individuals claiming authority to represent the entity or other relevant documentation.

 

(xv)         Security Advice. The Escrow Issuer acknowledges that regulations of the Comptroller of the Currency grant the Escrow Issuer the right to receive brokerage confirmations of the security transactions as they occur. The Escrow Issuer specifically waives such notification to the extent permitted by law and will receive periodic cash transaction statements that will detail all investment transactions.

 

Section 10. Security Procedures.

 

(i)            Notwithstanding anything to the contrary, any instructions in any way related to the transfer or distribution of the Escrow Funds must, in order to be deemed delivered and effective, be in writing and executed by the appropriate Party or Parties as evidenced by the signatures of the person or persons signing this Agreement or one of the designated persons as set forth on the Designation of Authorized Representatives attached hereto as Schedule 1-A and 1-B (each an “Authorized Representative”), and delivered to Escrow Agent only by facsimile (as evidenced by a confirmed transmittal to the applicable Party’s or Parties’ transmitting fax number) or as a Portable Document Format (“PDF”) attached to an email only at the fax number or email address set forth in Section 9(g) or through an online platform offered by Escrow Agent’s escrow services business. Escrow Agent shall not be liable to any Party or other person for refraining from acting upon any instruction for or related to the transfer or distribution of the Escrow Funds that does not satisfy the requirements herein. Escrow Agent may rely and act upon the confirmation of anyone purporting to be an Authorized Representative in connection with any of Escrow Agent’s verifying call-backs or email confirmations. Notwithstanding anything to the contrary, the Parties acknowledge and agree that Escrow Agent (i) shall have no obligation to take any action in connection with this Agreement on a non-Business Day and any action Escrow Agent may otherwise be required to perform on a non-Business Day may be performed by Escrow Agent on the following Business Day and (ii) may not transfer or distribute the Escrow Funds until Escrow Agent has completed its security procedures.

 

(ii)           Each Party authorizes Escrow Agent to use the funds transfer instructions (“Standing Instructions”) specified for it in Schedule 3 attached hereto (as may be supplemented from time to time as described below) to disburse any funds due to such Party, without a verifying call-back or email confirmation as set forth below.

 

(iii)          If any funds transfer instructions other than Standing Instructions are set forth in a permitted instruction from a Party or the Parties in accordance with this Agreement, Escrow Agent may confirm such funds transfer instructions by a telephone call-back or email confirmation to an Authorized Representative of such Party or Parties and thereafter, such funds transfer instructions shall also be considered the applicable Party’s Standing Instructions hereunder. To the extent a call-back or email confirmation is undertaken, no funds will be disbursed until such confirmation occurs. If multiple disbursements are provided for under this Agreement pursuant to any Standing Instructions, only the date, amount and/or description of payments may change without requiring a telephone call-back or email confirmation.

 

(iv)          The persons designated as Authorized Representatives and telephone numbers and email addresses for same may be changed only in a writing executed by an Authorized Representative or other duly authorized person of the applicable Party setting forth such changes and actually received by Escrow Agent via facsimile or as a PDF attached to an email or through an online platform offered by Escrow Agent’s escrow services business. Escrow Agent may confirm any such change in Authorized Representatives by a telephone call-back or email confirmation according to its security procedures.

 

Escrow Agent and other financial institutions, including any intermediary bank and the beneficiary’s bank, may rely upon the identifying number of the beneficiary, the beneficiary’s bank or any intermediary bank included in a funds transfer instruction, even if it identifies a person different from the beneficiary, the beneficiary’s bank or intermediary bank identified by name. It is understood that the purpose of Escrow Agent’s security procedures is to verify the authenticity of, and not to detect errors in, instructions.

 

(v)           The Parties acknowledge that the security procedures set forth in this Section are commercially reasonable.

 

 

(vi)          Notwithstanding anything to the contrary contained in this Agreement, in the event that an electronic signature is affixed to an instruction issued hereunder to disburse or transfer funds, such instruction may be confirmed by a verifying call-back (or email confirmation) to an Authorized Representative.

 

Section 11. Compliance with Directives. In the event that a legal garnishment, attachment, levy, restraining notice, court order or other governmental order (a “Directive”) is served with respect to any of the Escrow Funds, or the delivery thereof shall be stayed or enjoined by a Directive, Escrow Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all such Directives so entered or issued, and in the event that Escrow Agent obeys or complies with any such Directive it shall not be liable to any of the Parties hereto or to any other person by reason of such compliance notwithstanding such Directive be subsequently reversed, modified, annulled, set aside or vacated.

 

[Signature Pages Follow]

 

 

 

	CONCENTRA ESCROW ISSUER CORPORATION, as Escrow Issuer
	By:	/s/ Michael E. Tarvin
		Name:	Michael E. Tarvin
		Title:	Executive Vice President and Secretary

 

[Signature Page to Escrow Agreement]

 

 

IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the day first above written.

 

	JPMORGAN CHASE BANK, N.A., as Escrow Agent
	By:	/s/ Michael Kuzmicz
		Name:	Michael Kuzmicz
		Title:	Vice President

 

[Signature Page to Escrow Agreement]

 

 

IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the day first above written.

 

	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee
	By:	/s/ James W. Hall
		Name:	James W. Hall
		Title:	Authorized Signatory

 

[Signature Page to Escrow Agreement]

 

 

ANNEX I

 

FORM OF

 

CONCENTRA ESCROW ISSUER CORPORATION

 

RELEASE REQUEST

 

$[●]

 

6.875% SENIOR SECURED NOTES DUE 2032

 

[●], 2024

 

JPMorgan Chase Bank, N.A.

Escrow Services

575 Washington Boulevard 18th Floor

Jersey City, New Jersey 07310

Attention: Andrea Gilardi/Kimberly MacFarland

Email: **********@**********

 

U.S. Bank Trust Company, National Association, as Trustee

[Houston Greenway Plz

8 Greenway Plz Ste 110

Houston, Texas 77046-0892

Attention: [●]]

 

Re:         Release Request Officer’s Certificate Ladies and Gentlemen:

 

We refer to the Escrow Agreement, dated as of July 11, 2024 (the “Escrow Agreement”), among you (the “Escrow Agent”), the Trustee under the Indenture (as defined therein) and Concentra Escrow Issuer Corporation, a Delaware corporation (the “Escrow Issuer”). Capitalized terms used herein shall have the meaning given in the Escrow Agreement.

 

This Officer’s Certificate constitutes a Release Request under the Escrow Agreement. The Escrow Issuer hereby notifies you and certifies to you pursuant to Section 3(a) of the Escrow Agreement that the following conditions have been or substantially concurrently with the Release will be satisfied:

 

(1)           the Separation Documents have been executed and delivered by each of the parties thereto in accordance with their respective terms, in each case, with such agreements on terms substantially consistent in all material respects with the terms described in the Offering Memorandum;

 

(2)           the IPO shall have been consummated prior to or substantially concurrently with the Release, on terms substantially consistent in all material respects with the terms described in the Offering Memorandum (which for the avoidance of doubt excludes customary pricing terms for the IPO, which will be determined in connection with the pricing of such IPO);

 

 

(3)           all conditions precedent to Credit Agreement have been satisfied or waived in accordance with its terms and the lenders under such Credit Agreement have funded, or will substantially concurrently fund, term loans thereunder in an aggregate principal amount of $850.0 million;

 

(4)           the Assumption will be consummated substantially concurrently with the Release and the Issuer will deliver to the Trustee an officers’ certificate and an opinion of counsel, each stating that such Assumption complies with the Indenture;

 

(5)           the Issuer and each of the Guarantors (including the Company) will execute a joinder to the Purchase Agreement and will deliver or cause to be delivered such joinder to J.P. Morgan Securities LLC;

 

(6)           no Default or Event of Default shall have occurred and be continuing under the indenture at the time of, or after giving effect to, the Transactions (as defined in the Indenture); and

 

(7)           all initial purchasers’ discounts and all expenses required to be reimbursed in connection with the offering of the notes shall have been paid, and any Escrowed Funds shall have been used solely for the purposes set forth under the heading “Use of Proceeds” in this offering memorandum.

 

Neither the Escrow Agent nor the Trustee shall have any duty or obligation to verify or investigate the satisfaction of any conditions for release of the Escrow Funds.

 

The Escrow Issuer hereby notifies you and certifies to you that the release of the entire amount of funds from the Escrow Account is currently permitted in accordance with Section 3(a) of the Escrow Agreement and requests that you release such amounts on [DATE] as set forth on Schedule A hereto. The Escrow Agent is entitled to rely on the foregoing in disbursing Escrow Funds as specified in this Release Request.

 

[Signature page follows]

 

 

	CONCENTRA ESCROW ISSUER CORPORATION, as Escrow Issuer
	By:
		Name:	[●]
		Title:	[●]

 

[Signature page to Release Request]

 

 

Schedule A

 

WIRE INSTRUCTIONS    

 

Proceeds to be delivered:		$[●]
Name of Bank:		[●]
ABA Number of Bank:		[●]
Account Number at Bank:		[●]
Name of Account:		[●]
J.P. Morgan Securities LLC
as representative of the Initial Purchasers
Proceeds to be delivered:		$[●]
Name of Bank:		[●]
ABA Number of Bank:		[●]
Account Number at Bank:		[●]
Name of Account:		[●]

 

Amount:
Beneficiary:
City:
Country:
US Instructions:
Bank Name:
Bank Address:
ABA Number:
Credit A/C Name:
Credit A/C #:
Credit A/C Address:
If Applicable:
	FFC A/C Name:
	FFC A/C #:
	FFC A/C Address:
International Instructions:
Bank Name:
Bank Address
SWIFT Code:
US Pay Through ABA:

Credit A/C Name:

Credit A/C # (IBAN #):

Credit A/C Address:

If Applicable:

FFC A/C Name:

FFC A/C # (IBAN #):

FFC A/C Address:

 

 

ANNEX II

 

FORM OF ESCROW REDEMPTION NOTICE

 

[Insert if Escrow Redemption Notice is being executed by the Escrow Issuer:

 

[ESCROW ISSUER’S LETTERHEAD]]

[Insert if Escrow Redemption Notice is being executed by the Trustee:

 

[TRUSTEE LETTERHEAD]]

 

6.875% SENIOR SECURED NOTES DUE 2032

 

[●], 2024

 

JPMorgan Chase Bank, N.A.

Escrow Services

575 Washington Boulevard 18th Floor

Jersey City, New Jersey 07310

Attention: Andrea Gilardi/Kimberly MacFarland

Email: **********@**********

 

U.S. Bank Trust Company, National Association, as Trustee

[Houston Greenway Plz

8 Greenway Plz Ste 110

Houston, Texas 77046-0892

Attention: [●]]

 

Re: Escrow Redemption Notice

 

Ladies and Gentlemen:

 

We refer to the Escrow Agreement, dated as of July 11, 2024 (the “Escrow Agreement”), among you (the “Escrow Agent”), the Trustee under the Indenture (as defined therein) and Concentra Escrow Issuer Corporation, a Delaware corporation (the “Escrow Issuer”). Capitalized terms used herein shall have the meaning given in the Escrow Agreement.

 

[Insert if Escrow Redemption Notice being executed by the Escrow Issuer: This notice constitutes an Escrow Redemption Notice under the Escrow Agreement, and the undersigned hereby certifies to you pursuant to Section 3(b) of the Escrow Agreement that (a) [the Escrow Issuer informs the Escrow Agent in writing that, in the judgment of the Escrow Issuer, the Escrow Conditions will not be satisfied on or prior to the Outside Date] [the Escrow Issuer informs the Escrow Agent in writing that the Separation and the IPO have been abandoned] and the Special Mandatory Redemption is to occur and (b) the Special Mandatory Redemption Date and Special Mandatory Redemption Price are as follows:

 

	Special Mandatory Redemption Date:	[●], 20[●]
	Special Mandatory Redemption Price:	$[●] for all outstanding Notes]

 

 

[Insert if Escrow Redemption Notice being executed by the Trustee: This notice constitutes an Escrow Redemption Notice under the Escrow Agreement, and the undersigned hereby notifies you pursuant to Section 3(b) of the Escrow Agreement that (a) the Special Mandatory Redemption is to occur on the Escrow Redemption Date (which date shall be the Special Mandatory Redemption Date) and (b) the Special Mandatory Redemption Date and Special Mandatory Redemption Price are as follows:

 

	Special Mandatory Redemption Date:	[●], 20[●]
	Special Mandatory Redemption Price:	$[●] for all outstanding Notes]

 

The [Escrow Issuer/Trustee] hereby request[s] that you pay to the Trustee the Special Mandatory Redemption Price (or if less, all amounts on deposit in the Escrow Account) in accordance with the instructions set forth below:

 

U.S. Bank Trust Company, National Association, as Trustee

Proceeds to be delivered                                                                                                              $[●]

 

[U.S. Bank Trust Company, National Association

U.S. Bank N.A.

ABA [●]

BNF    [●]

Beneficiary Account Number:      [●]

Beneficiary Account Address:      [●]

 

Ref: [●]] ¹

 

The [Escrow Issuer/Trustee] hereby further request[s] that, concurrently with the release of the Special Mandatory Redemption Price (or if less, all amounts on deposit in the Escrow Account) to the Trustee pursuant to Section 3(b) of the Escrow Agreement, you release out of any excess Escrow Funds such amounts on [DATE] as set forth on Schedule A hereto.

 

¹ Note to Draft: USB to provide Trustee account information.

 

 

The Escrow Agent is entitled to rely on the foregoing in disbursing Escrow Funds as specified in this notice.

 

	[Insert if Escrow Redemption Notice is being executed by the Escrow Issuer:
	CONCENTRA ESCROW ISSUER CORPORATION, as Escrow Issuer
	By:
		Name:	[●]
		Title:	[●]]

 

	[Insert if Escrow Redemption Notice is being executed by the Trustee:
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee
	By:
		Name:	[●]
		Title:	[●]]

 

 

Schedule A

 

WIRE INSTRUCTIONS

 

FIRST, JPMorgan Chase Bank, N.A., as Escrow Agent

Proceeds to be delivered:			$[●]
[JPMorgan Chase Bank, N.A.
ABA	[●]
BNF	[●]
Beneficiary Account Number:		[●]
Beneficiary Account Address:		[●]
Ref: [●]]2
and, U.S. Bank Trust Company, National
Association, as Trustee			$[●]
Proceeds to be delivered:
[U.S. Bank Trust Company, National Association
U.S. Bank N.A.
ABA	[●]
BNF	[●]
Beneficiary Account Number:		[●]
Beneficiary Account Address:		[●]
Ref: [●]]
and, [●], as counsel to the Trustee and Escrow Agent
Proceeds to be delivered:			$[●]
SECOND, [_____]			$[●]
Proceeds to be delivered:
Name of Bank:			[●]
ABA Number of Bank:			[●]
Account Number at Bank:			[●]
Name of Account:			[●]
Reference:

 

² Note to Draft: JPM to provide Escrow Agent account information.

 

 

ANNEX III

 

FORM OF ACCELERATION NOTICE

 

[TRUSTEE LETTERHEAD]

 

6.875% SENIOR SECURED NOTES DUE 2032

 

[●], 20[●]

 

JPMorgan Chase Bank, N.A.

Escrow Services

575 Washington Boulevard 18th Floor Jersey City, New Jersey 07310

Attention: Andrea Gilardi/Kimberly MacFarland

Email: **********@**********

 

Re:           Acceleration Notice

 

Ladies and Gentlemen:

 

We refer to the Escrow Agreement, dated as of July 11, 2024 (the “Escrow Agreement”), among you (the “Escrow Agent”), the Trustee under the Indenture (as defined therein) and Concentra Escrow Issuer Corporation, a Delaware corporation (the “Escrow Issuer”). Capitalized terms used herein shall have the meaning given in the Escrow Agreement.

 

This notice constitutes an Acceleration Notice under the Escrow Agreement, and the undersigned hereby certifies to you pursuant to Section 3(d) of the Escrow Agreement that the Default Amount has become immediately due and payable pursuant to Section [●] of the Indenture.

 

The Trustee hereby requests that you pay to the Trustee for payment to the Holders of the Notes, to the extent of the proceeds of such liquidated Escrow Funds, an amount of Escrow Funds sufficient to pay the Default Amount (or, if less, all such proceeds) pursuant to Section 3(d) of the Escrow Agreement, in accordance with the instructions set forth below:

 

U.S. Bank Trust Company, National Association, as Trustee  

Proceeds to be delivered:

$[●]

 

U.S. Bank Trust Company, National Association
U.S. Bank N.A.
ABA	[●]
BNF	[●]
Beneficiary Account Number:		[●]
Beneficiary Account Address:		[●]
Ref: [●]]

 

 

The Trustee hereby further requests that, concurrently with the release to the Trustee of the amount described above pursuant to Section 3(d) of the Escrow Agreement, you release out of any excess Escrow Funds such amounts on [DATE] as set forth on Schedule A hereto.

 

The Escrow Agent is entitled to rely on the foregoing in disbursing Escrow Funds as specified in this notice.

 

	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee
	By:
		Name:	[●]
		Title:	[●]

 

 

Schedule A

 

WIRE INSTRUCTIONS

 

FIRST, JPMorgan Chase Bank, N.A., as Escrow Agent

Proceeds to be delivered:			$[●]
[JPMorgan Chase Bank, N.A.
ABA	[●]
BNF	[●]
Beneficiary Account Number:		[●]
Beneficiary Account Address:		[●]
Ref: [●]]
and, U.S. Bank Trust Company, National
Association, as Trustee			$[●]
Proceeds to be delivered:
[U.S. Bank Trust Company, National Association
U.S. Bank N.A.
ABA	[●]
BNF	[●]
Beneficiary Account Number:		[●]
Beneficiary Account Address:		[●]
Ref: [●]]
and, [●], as counsel to the Trustee and Escrow Agent
Proceeds to be delivered:			$[●]

 

[●]

 

 

ANNEX IV

 

FORM OF

ESCROW PROPERTY TRANSFER REQUEST

 

[On Escrow Issuer Letterhead]

 

[●], 202[●]

 

JPMorgan Chase Bank, N.A.

Escrow Services

575 Washington Boulevard 18th Floor

Jersey City, New Jersey 07310

Attention: Andrea Gilardi/Kimberly MacFarland [●]

Email: **********@**********

 

U.S. Bank Trust Company, National Association

[Houston Greenway Plz

8 Greenway Plz Ste 110

Houston, Texas 77046-0892

Email: [●]]

 

Re:     Escrow Investment instruction

 

Ladies and Gentlemen:

 

We refer to the Escrow Agreement, dated as of July 11, 2024 (the “Escrow Agreement”), among you (the “Escrow Agent”), the Trustee and Concentra Escrow Issuer Corporation, a Delaware corporation (the “Escrow Issuer”). Capitalized terms used herein shall have the meaning given in the Escrow Agreement.

 

The Escrow Issuer hereby requests in writing pursuant to Section 2(b)(ii) of the Escrow Agreement that [$______] of the Escrowed Property be transferred from the [Cash Account to the Securities Account(s), [identify applicable Cash / Security Account as needed],] [and/or be invested in [list applicable accounts / amounts/ investments] an Eligible Investment and the Escrow Issuer hereby also completes to the Escrow Agent’s satisfaction, the Escrow Agent’s customary documentation for investment in the applicable money market mutual fund as set forth in Schedule 4 to the Escrow Agreement, such Schedule 4 may be amended.

 

[Signature page follows]

 

 

	CONCENTRA ESCROW ISSUER CORPORATION, as Escrow Issuer
	By:
	Name:	[●]
	Title:	[●]

 

 

v3.24.2

Cover	Jul. 11, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jul. 11, 2024
Entity File Number	001-34465
Entity Registrant Name	SELECT MEDICAL HOLDINGS CORPORATION
Entity Central Index Key	0001320414
Entity Tax Identification Number	20-1764048
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	4714 Gettysburg Road
Entity Address, Address Line Two	P.O. Box 2034
Entity Address, City or Town	Mechanicsburg
Entity Address, State or Province	PA
Entity Address, Postal Zip Code	17055
City Area Code	717
Local Phone Number	972-1100
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.001 per share
Trading Symbol	SEM
Security Exchange Name	NYSE
Entity Emerging Growth Company	false

---